2001 Unesco Convention on Protection of Underwater Cultural Heritage & 2003 Unesco Convention Safeguarding of Intangible Cultura

NCOP Education and Technology, Sports, Arts and Culture

27 February 2008
Chairperson: Mr M A Sulliman (ANC)
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Meeting Summary

The Department of Arts and Culture briefed the Committee on two Conventions that it sought to have ratified. The Convention on the Protection of Underwater Cultural Heritage sought to protect the wrecks and artifacts of ships that had sunk more than 100 years ago. Preferably these should be preserved in situ. Professional archaeological and salvage activities under prescribed guidelines, including a permit system, accountability, keeping of records and disclosures, would be allowed. States that were party should facilitate training in underwater archaeology, the transfer of technologies, information sharing, and public awareness of the value and significance of underwater cultural heritage. Commercial exploitation was incompatible with proper management of underwater cultural heritage. The Department had conducted extensive consultation and had the support of various bodies to seek ratification, as this was felt to contribute to the protection of South Africa’s underwater cultural heritage, but with the provision that salvage activities were allowed under strict guidelines and supervision from the South African Heritage Resources Agency (SAHRA). The Department was formulating a draft national policy for underwater cultural heritage in order to guide activities in the sector. However, there were challenges, in particular arising from rough and heavy seas, non-recording of salvage findings, and the lack of capacity to monitor, as well as a desperate shortage of skills in marine archaeology.  Members asked why there had been such a long delay in seeking ratification, what the Department was intending to do to publicise careers and support students, who would be assisted by bursaries, and raised the problems around insurance and salvage.

The Department then briefed the Committee on the 2003 Unesco Convention on the Safeguarding of Intangible Cultural Heritage (ICH), which aimed to safeguard, preserve and promote instruments, expressions, objects, artifacts and cultural spaces associated with communities , groups and individuals, to be recognised as part of the cultural heritage of a country. 88 Countries had ratified this Convention and 20 of them were African states. States were obliged by the Convention to identify, define and devise appropriate measures for preservation of intangible heritage. Wide consultation had been held and stakeholders had recommended ratification of the Convention. The benefits would include the potential to decolonise South Africa’s heritage, and contribute to social cohesion. Communities must be involved in implementation. The Convention also promoted
regional, continental and international co-operation in safeguarding intangible heritage. If implemented, the Convention would require the Department to collaborate closely with other departments. The Department was developing a national policy of norms and standards. A draft of the policy should be ready by May or June.  Members queried what would be the situation if a particular cultural practice were to be challenged as contrary to human rights, whether practices that caused suffering to animals would be allowed, and whether every practice would be recorded. They sought clarity on the definitions, asked when the legislation would be introduced, and noted that a number of competing interests would have to be considered.  Neither Convention was ratified at this stage.

Meeting report

 

2001 UNESCO Convention on the Protection of Underwater Cultural Heritage: Department of Arts and Culture (DAC) Briefing
Mr Mbhazima Makhubele, Director: Heritage Policy, DAC, gave a briefing on the request for ratification of the 2001 UNESCO Convention on the Protection of Underwater Cultural Heritage. This Convention was adopted on 02 November 2001 in Paris.

Mr Makhubele explained the definition of underwater cultural heritage, and how it referred to the interaction of peoples and nations with the oceans over the course of centuries. In a large number of cases it concerned the wrecks of ships that had been sailing from Europe to the east, or vice versa. Underwater cultural heritage included artefacts and human remains of such sites. It excluded modern artefacts such as pipelines and cables laid on the seabed.

To date, 16 countries, including, in Africa, Libya and Nigeria, had ratified the Convention. It was not expected that countries such as Botswana and Zimbabwe, that lacked a coastline, would ratify the Convention.

The Department of Arts and Culture submitted in May 2007 a Cabinet Memorandum seeking approval for ratification. The committee for the social cluster on 23 May 2007 recommended that the Cabinet approve the submission of the 2001 UNESCO Convention on the Protection of Underwater Cultural Heritage to Parliament for ratification, and noted the need for the Department of Arts and Culture to prepare relevant legislation in line with, among others, Articles 9 and 17 of the Convention with a view to implementing effectively the requirements of the Convention.

The Convention provided a common definition of underwater cultural heritage to states party to the Convention, and established norms and standards for the protection of underwater cultural heritage. It was of special concern that looting, damage and destruction were on the increase due to technical developments.

South Africa’s territorial waters extended to the edge of the continental shelf, 200 kilometres away from the shore.
 
The Convention sought to promote, preferably in situ, preservation of underwater cultural heritage for the benefit of humanity. South Africa’s unique coastline and marine environment, which themselves presented particular difficulties in preserving items of heritage in situ, however, had to be taken into account when endeavouring to conform to the Convention’s aims and objectives.

The Convention sought to provide protection for underwater cultural heritage more than 100 years old. However, South Africa’s own legislation provided blanket protection for underwater cultural heritage more than 60 years old.

Article 4 of the Convention provided for professional archaeological and salvage activities under prescribed guidelines, including a permit system, accountability, keeping of records and disclosures.

It made provision between states that were party to the Convention, and to facilitate training in underwater archaeology, the transfer of technologies, information sharing, and public awareness of the value and significance of underwater cultural heritage.

The Convention stated that the commercial exploitation of underwater cultural heritage (UCH) was fundamentally incompatible with the protection and proper management of underwater cultural heritage.

However, a close examination of the Convention reveals that this could by mitigated through regulated salvage activities facilitated by an effective permit system, and supported by a national policy on underwater cultural heritage that respected national sovereignty.

The Department of Arts and Culture had conducted a process of consultation. In 2006 the Department had had meetings with the South African Heritage Resources Agency (SAHRA), South Africa’s UNESCO office, and government departments concerned, namely, Foreign Affairs, Justice and Constitutional Development, Environmental Affairs, the South African National Defence Force (SANDF), and the South African Navy. It also consulted with maritime archaeologists, and salvors. In October 2006 it held a national consultative workshop to obtain input from stakeholders on the ratification of the Convention.

The outcome of the process of consultation was the determination that South Africa should ratify the Convention. It was felt that this would contribute to the protection of South Africa’s underwater cultural heritage, but with the provision that salvage activities were allowed under strict guidelines and supervision from the South African Heritage Resources Agency (SAHRA).

The Department was formulating a draft national policy for underwater cultural heritage in order to guide activities in the sector.

In situ preservation, though ideal, presented in practice many challenges. South Africa’s seas were notably rough and unpredictable. This meant that gradually, underwater cultural heritage around South Africa’s shores was endangered by natural elements, in addition to predations from salvors who commercially exploited shipwrecks for valuable items such as gold, silver and porcelain. A special problem with salvors was that most often their finds were not recorded.

A further serious challenge was the lack of capacity to monitor and enforce government policy. Recently SAHRA banned commercial salvation. However, because of lack of capacity to enforce that policy, salvors continued to excavate and sell objects found.

The Department was currently working on a national policy but it was confronted by the competing interests of salvors, archaeologists, national legislation, and the requirements of the constitution.

A major challenge was that South Africa had less than ten practising archaeologists for the entire coastline of more than 2 500 kilometres. Moreover, these archaeologists were all nearing retirement age. No young archaeologists were in training. Furthermore, the present complement of archaeologists did not reflect the demographic profile of the country. University programmes in marine archaeology at Stellenbosch and Cape Town had ceased for lack of demand several years previously.

Once the Convention had been ratified, the Department would establish a system for reporting nationally, and to the Director-General of UNESCO, and required by the Convention. Government organs, for example, the Department of Environmental Affairs and Tourism (DEAT), the South African National Defence Force, the South African Navy, and the South African Police Service (SAPS), needed to work closely together for safeguarding underwater cultural heritage.

Discussion
Ms N Madlala Magubane (ANC) asked why this convention had been delayed in being ratified and was only being raised six years after it had been adopted.

Mr Makhubele responded that there no issues that called for this Convention to be raised before, but South Africa now recognized the need to have it ratified. 

Ms Madlala Magubane went on to ask what was the Department going to do to encourage students to register for maritime technologists’ courses and how were they to approach the universities in introducing such courses

Mr Makhubele responded that the Department would also introduce bursaries to students to encourage them to take up these courses, and would publicise them.

Ms H Lamoela (DA) asked, in the case of a ship wrecked 60 years ago, whether anything could be brought to the surface.

Mr Makhubele stated that the Convention dealt with underwater artifacts of a certain age, and the question raised would need further enquiry.

Ms Lamoela asked why there was only mention of the Department encouraging black students, and asked about other students.  .

Mr Makhubele said that the Department had decided to hold a skills audit. This skills audit would identify challenges in implementing this plan, and professionals would be imported to assist with implementing this action. He reiterated that the Department was intending to introduce bursaries in this field, to encourage students to take up these courses. This would cater also for coloured students.

Ms J Masilo (ANC) asked whether the Select Committee could also look and analyse the policy after all the consultation processes. She asked when it was likely to be finalised. She asked whether the South African Heritage Resource Agency role and the Heritage Resource legislation should be abandoned.

Mr Makhubele said that although the current legislation had some gaps, it was possible to borrow certain aspects. In fact a new piece of legislation was needed for this specific matter.

The Chairperson asked whether this Convention tackled the insurance problem because he had understood that when a ship was wrecked the insurers would normally claim the wreckage once the claim had been paid.

Mr Makhubele agreed that this often happened in practice, but that the Convention was silent on the issue. The drafters had realized that this was a matter that could raise a number of issues and had deliberately decided not to deal with it, as it could have posed an obstacle to ratification.

2003 UNESCO Convention Safeguarding of Intangible Cultural Heritage
Mr Makhubele indicated that the 2003 Unesco Convention on the Safeguarding of Intangible Cultural Heritage (ICH) was adopted in 2003 in Paris. It aimed to safeguard,  preserve and promote instruments, expressions, objects, artifacts and cultural spaces associated with communities , groups and individuals, to be recognised as part of the cultural heritage of a country. So far 88 Countries had ratified this Convention and 20 of them were African states.

The Convention obliged States to identify, define and devise appropriate measures for preservation of heritage. He gave examples that Robben Island would be a tangible part of heritage, but rituals or rites of passage practised by communities would be intangible. Mr Makhubele noted that after wide consultation workshops were held in Pretoria with relevant stakeholders, which expressed support for the Department seeking ratification of the Convention.

The benefits of ratification would include the potential to decolonise South Africa’s heritage, which was dominated by museums and monuments. A further benefit was that ICH could contribute to social cohesion and nation-building. The Convention was explicit that communities, groups, and non-governmental organisations should be involved in its implementation. In addition it promoted regional, continental and international co-operation in safeguarding ICH. Besides sharing borders, South Africa also shared many cultural and heritage features with its six neighbouring countries. Ratification would enable South Africa to share international expertise and best practice.

Implementation of the Convention would require the Department to collaborate closely with other departments concerned with intangible cultural heritage, for example, the Department of Science and Technology, which had developed a national policy on indigenous knowledge systems (IKS).

The DAC was developing a national policy of norms and standards for preservation, promotion and transmission of intangible cultural heritage, with potential to rectify the inequality between tangible and intangible heritage and thereby contribute to decolonisation of heritage.

The State Law Advisors of the Departments of Justice, Foreign Affairs, and Environmental Affairs and Tourism had provided legal opinions on consistency with domestic and international law. Also the Department had completed a Cabinet memorandum that the Minister of Arts and Culture had signed off on 05 October 2007. The DAC was therefore beginning the parliamentary processes, as well as the completion and implementation of a national policy. It expected to have a draft of this policy ready by May or June 2008. The Department also aimed to complete a national audit to establish the size and extent of South Africa’s intangible cultural heritage. It would begin listing of that heritage soon after completion of the audit and inventory.


Discussion
Mr M Thetjeng (DA) asked what would happen if a particular culture were to adopt certain practices – such as virginity testing – that might be challenged on the basis that it was a violation of privacy.

Mr Makhubele responded that the Department would not include everything that that the community wanted to be preserved. The Convention was quite clear that practices that tended to violation of human rights would not be included. It was possible to debate these issues further, but it must be remembered that the Constitution was the overriding law.

Mr B Tolo (ANC) wanted clarification on whether artifacts were intangible, and if instruments were objects. He felt that the definition was confusing.

Mr Makhubele agreed that there had been some challenges in clarifying the definitions but something intangible could apparently be the suit that Nelson Mandela wore when he came out of prison, and an object could be a bag used to transport important historical letters.

Mr Tolo asked whether any other rights were being considered. He noted that a Zulu practice required six men to slaughter a bull with their bare hands, and the bull suffered tremendously before it died.

Mr Makhubele responded that animal rights were located in the Constitution as well and he was aware of these issues. The above question raised divergent issues, and he could not comment at this stage, but noted that all issues would be looked at in the context of the Convention.

Ms Madlala- Magubane (ANC) wanted to know when the Department proposed to introduce the legislation

Mr Makhubele responded that the Department was aware that there was a short parliamentary year, but the work had already begun. Although there was nothing to put before the Committee at present, this would be done probably by June.

A Member was of the opinion that this Convention was not really so important, because there was a lot of tension between cultural, community, individual and human rights. The effect might be to favour one community over the other or violating an individual’s rights at the expense of the community.

Mr Makhubele agreed that there might be competing interests but said he was not in a position to comment further.

The Chairperson concluded that these two Conventions could not yet be finalised pending responses from Cabinet.

The meeting was adjourned


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