CouncilEurope

European Convention on the Protection of the Archaeological Heritage (revised)

(ETS No. 143)
The Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community entered into force on 1 December 2009. As a consequence, as from that date, any reference to the European Community shall be read as the European Union.

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Explanatory Report

A. Introduction

The revised European Convention on the Protection of the Archaeological Heritage stands as testimony to the evolution of archaeological practice throughout Europe. It replaces the original Convention of 1969, incorporating concepts and ideas which have now become accepted practice. The revised Convention builds on the lessons learnt from the last twenty-two years of experience with the initial convention and incorporates provisions designed to overcome defects and strengthen European co-operation.

a. The 1969 European Convention

The 1969 Convention is mainly concerned with archaeological excavations and the extraction of information from those excavations. It entered into force on 20 November 1970. States party are: Austria, Belgium, Cyprus, Denmark, France, Germany, Greece, Iceland, Italy, Liechtenstein, Luxembourg, Malta, Portugal, Spain, Sweden, Switzerland, United Kingdom, Bulgaria, Holy See, USSR and Yugoslavia.

b. Recommendation No. R (89) 5

While, in the 1960s, clandestine excavation was seen as the major threat to the archaeological heritage, in the 1980s, it was large-scale construction projects. With increasing populations and ever higher standards of living, development projects grew in number and complexity: major public works (motorways, underground railways and high-speed trains, replanning of old town centres, car parks, etc.) or physical planning schemes (reafforestation, land consolidation, etc.). The scale of such operations poses a peculiar threat to the discovery and protection of the archaeological heritage. A complex web of law and legislation is involved: specific legislation on archaeological materials, more general legislation on the cultural heritage, legislation on the environment, town planning, public works, building permits, etc.

The recommendation adopted by the Committee of Ministers of the Council of Europe drew on practice that had evolved over recent years to advocate: the formation of archaeological inventories and data banks which would be communicated by archaeological heritage managers to developers; the creation of administrative structures capable of handling development projects involving archaeological data; the adoption of legal and administrative measures necessary for archaeological data to be taken into account as a matter of course in the town and country planning process; the promotion of specified new working conditions in the context of major development operations; the education of the public in the value of the archaeological heritage as a major element of the European cultural identity.

c. Revision of the Convention

The Council of Europe Select Committee of Experts on Archaeology and Planning, at its meeting in October 1988, considered that, since the opening of the Convention for signature in 1969, the problems of safeguarding and enhancing the archaeological heritage had changed considerably in Europe; the Convention's contents should therefore be revised in order to make the text more coherent and comprehensive. A study of the Convention produced as a result of that meeting spoke of major changes in the scientific and economic context of archaeology. In particular, there has been a major switch from concentration on excavation to the utilisation of a wide range of techniques - geophysical prospecting, the processing of satellite pictures, laboratory analysis - in studying the past life of mankind. Excavation is now but one link in the chain of scientific activities that make up archaeological research. Furthermore, there is an increasing demand by members of the public to have access to their past. This is a demand for an identity and is a fundamental right of peoples. It can only be met by specialists - archaeologists - who can interpret the data and assist the public in gaining access to its heritage.

The proposal to draw up a revised Convention and denounce the 1969 Convention was endorsed by the Steering Committee for Integrated Conservation of the Historic Heritage (CDPH) and later by the Committee of Ministers. The revision was taken up by the Select Committee of Experts on Archaeology and Planning.

Since June 1990, the Select Committee of Experts on Archaeology and Planning has been operating within the programme of the Cultural Heritage Committee (CC-PAT), which replaced the Steering Committee for Integrated Conservation of the Historic Heritage in 1990.

Once examined and approved by the Cultural Heritage Committee on 26 June 1991, the draft Convention was submitted to the Committee of Ministers which in turn adopted it at the 465th meeting of the Ministers' Deputies.

The Convention was opened for signature by member States on 16 January 1992 at the 3rd European Conference of Ministers responsible for the Cultural Heritage in Malta.

B. Commentary on the articles of the revised Convention

Preamble

The preamble does much more than assist in interpretation of the revised Convention. It places the revised Convention in the framework of activities of the Council of Europe concerning the cultural heirtage since the European Cultural Convention came into force. The Parliamentary Assembly has for example adopted recommendations on the under-water cultural heritage, the use of metal detectors, the circulation of works of art.

The preamble also emphasises the problems facing the conservation of the archaeological heritage in areas where large-scale development projects are endemic. Such projects, whether they concern the redevelopment of built-up areas or the use of clear land, often have a severe impact on the archaeological heritage which, as the preamble states, "is essential to a knowledge of the history of mankind".

Finally, the preamble stresses the necessity for joint action by European States.

Article 1

The stated aim of the revised Convention emphasises the scientific importance of the archaeological heritage. In years gone by, archaeological sites and monuments were mined for objects, to be placed in museums and art galleries. Even today, there are many who regard this heritage as a source of commercial gain. States must be vigilant to prevent digging of this type, leading as it does to destruction of context. Thus, the aim of the revised Convention is consistent with the Charter for the Protection and Management of the Archaeological Heritage produced by the International Council of Monuments and Sites (hereinafter referred to as the "Icomos Charter"), which states that "archaeological knowledge is based principally on the scientific investigation of the archaeological heritage" and that excavation is a last resort in the search for that information. This is not to say that the heritage must remain inviolate. By the use of scientific techniques, both destructive and non-destructive, the heritage can be used to provide information on the evolution of mankind in Europe, to serve "as a source of the European collective memory".

The revised Convention commences with a general definition. The basic notion of the definition was contained in the 1969 Convention. That in the revised Convention has been refined. The phrase "elements of the archaeological heritage" is used to emphasise that it is not just objects that are important. Any evidence, of whatever nature, that can throw light on the past of mankind is important. If that evidence meets the criteria set in pargraph 2, then it is an element of the archaeological heritage. There are three criteria: first, there must be something, even a trace, which comes from past human existence; secondly, that same thing must be capable of enhancing our knowledge of the history of mankind and its relation with the natural environment; thirdly, it must be something that is mainly ascertained through investigation of an archaeological nature or deliberate discovery. Paragraph 3 gives examples of the type of things included in the archaeological heritage. It must be stressed that this list is not exhaustive, but illustrative only.

The list moreover covers a wide range of elements, including for instance burial sites as well as urban walls.

The paragraph also emphasises that the context in which these things are found is as important as part of the archaeological heirtage as the things themselves. Objects removed from their context often lose their entire scientific value. Moreover, in archaeological investigation traces are often as important as objects and this is stressed in the definition. For example, all that is left of a wooden structure may be a discoloration in the soil, but the trained investigator can learn much information from this. The precise nature of archaeological investigation is not spelled out in the revised Convention. One may immediately think of excavation. However, this is the ultimate step in such investigation. First, there should be survey and then there are various non-destructive techniques and sampling processes available before proceeding to excavate.

The list of elements set out in paragraph 3 states that these are part of the archaeological heritage, whether they are situated on land or under water. This must be qualified by the third of the criteria appearing in paragraph 2 that the element from past human existence must be located within the area of jurisdiction of a State. In itself this is merely stating what is inherent in any international convention. Here, it emphasises that the actual area of State jurisdiction depends on the individual States and, in this respect, there are many possibilities. Territorially, the area can be coextensive with the territorial sea, the contiguous zone, the continental shelf, the exclusive economic zone or a cultural protection zone. Among the members of the Council of Europe some States restrict their jurisdiction over shipwrecks, for example, to the territorial sea, while others extend it to their continental shelf. The revised convention recognises these différences without indicating a preference for one or the other.

Article 2

The primary requirement of this article is that States should institute a legal system for the protection of the archaeological heritage. All States members of the Council of Europe do in fact have systems of some sort in place, although there are considerable variations in both the nature and extent of the protection afforded. The article also sets out certain provisions that should appear in this legislation.

The first is a double provision requiring the use of an inventory recording the archaeological heritage and, in addition, the designation of protected monuments and areas. Both are essential elements of the planning process, as they enable projects to take the archaeological heritage into account at the formulation stage. The inventory has much to recommend it. Once objects have been found, their inclusion in an inventory should mean that their whereabouts thereafter is known. It allows the physical condition of the object to be monitored if desired. In the event of the object being stolen, its description can easily be circulated thus facilitating recovery. The designation of protected monuments and areas is useful when one does not know the extent of a site or monument. The revised Convention does not specify the size of such a protected area or the activities that should be prohibited therein. These are left to the individual State in the light of circumstances and the type of sites that may be encountered.

Archaeological reserves are areas of land subject to certain restrictions in order to preserve the archaeological heritage contained within the borders. The Unesco Recommendation concerning the Preservation of Cultural Property endangered by Public or Private Works (19 November 1968) provides that (Article 24.a): "Archaeological reserves should be zoned or scheduled and, if necessary, immovable property purchased, to permit thorough excavation or the preservation of the ruins found at the site." Article 2 of the revised Convention is aimed at preserving the heritage in order that it will be available for later generations. It should be read in conjunction with Article 4, sub-paragraph i. The creation of reserves does not mean that the land cannot be used at all. Normally, it means that operations which disturb the soil cannot be allowed, or must first be cleared by the relevant authorities. Any excavation must be subjected to severe scrutiny in the light of scientific objectives.

The finder of a chance discovery must report it to the named authorities. The provision has nothing to do with ownership. All finders are required to do is make the discovery known in the prescribed manner and make it available for examination.

This would then allow the find to be recorded in the inventory already mentioned and its scientific value to be extracted. A State, however, may only require mandatory reporting of finds of precious materials or on already listed sites.

Article 3

Article 3, paragraph i, requires States party to the revised Convention to establish a system regulating the conduct of archaeological activities, whether on public or private land. World-wide it is common for States to require a person intending to engage in such activities to obtain a permit.

The permit contains various conditions controlling the activities envisaged. In this way it is sought to limit any damage to the archaeological heritage strictly to that which provides scientific evidence. Excavations made solely for the purpose of finding precious metals or objects with a market value should never be allowed. Article 3, paragraph i, makes it clear that the system installed should apply to the State as well as to private archaeologists. State departments must also follow the procedure. In addition, the article emphasises that excavation is to be regarded as the ultimate step in seeking information - not the normal method. Non- destructive techniques are to be used wherever possible, as already stated in the Icomos Charter.

Moreover, once the archaeological heritage is exposed it begins to decay. The rate of decay depends on the material concerned and the degree of exposure. Many conservators regard excavation without proper provision being made for conservation as vandalism. Consequently, when resort is made to excavation in order to resolve some scientific problem, there must be conservation facilities available and a plan of management in place to deal both with what is found and the remains of the site. The objects conserved have to be cleaned and stored so that they will be available to future generations of researchers. This means that there should be a known depository where there exists a data base covering the excavation or discovery. The site of the excavation may still contain material of value to, future excavators and should either be filled in or conserved. The revised Convention in Article 3, paragraph i, requires that the system which the State introduces for governing archaeological activities must provide for these aspects. This article must be read in conjunction with Article 4.

Article 3, paragraph ii, requires destructive techniques to be carried out only by qualified, specially authorised persons. This does not mean to say that members of the general public cannot be engaged on excavations. It means that they must be under the control of a qualified person who is responsible for the excavation. Non-professionals have in fact contributed greatly to the development of knowledge through assistance in excavation of the archaeological heritage.

Article 3, paragraph iii, governs the obligation of Parties to adopt the licensing or registration of the users of metal detectors. Firstly, such obligation applies to the cases foreseen by domestic law. Secondly, prior authorisation of the use of metal detectors or "any other detection equipment" applies only to "archaeological investigation".

Indiscriminate use of metal detectors leads to substantial loss of the archaeological heritage, particularly through the destruction of context. For example, once something is registered by the machine the over- whelming impulse is to dig it up. There is no way of knowing whether the find is of major archaeological importance or a discard of the twentieth century. The result in either case is that the soil is violently disturbed and any non-metallic substances and traces destroyed. The provision applies to searching for archaeological objects on both public and private land. The phrase "any other detection equipment" is intended to cover equipment used for a similar purpose such as ultra-sound and ground radar.

Article 4

Whereas Articles 2 and 3, paragraph i, deal with the setting up of legal and administrative systems to enable the establishment of archaeological reserves as well as the conservation and management of excavated sites and objects, Article 4 imposes on States the obligation to actually take physical measures to bring these about. Although the qualifying phrase "as circumstances demand" is used, this article obliges States to allocate resources, both physical and human, to the tasks specified. States are required to ensure that public authorities are aware of the desirability of establishing archaeological reserves and have the means to do this. It is a continuing obligation, as creation of a reserve is but the beginning of a process of maintenance.

In paragraph i of Article 4, the words "protection by other appropriate means" relate to physical planning measures.

Article 5

This article encapsulates contemporary thought and practice on the relationship between development projects and preservation of the archaeological heritage.

States are required to involve archaeologists in the entire plannig process and to ensure that archaeologists and town and regional planners consult one another. Moreover, where environmental impact statements are required, these should specifically consider archaeological sites and their settings. In this way, known and suspected sites can be taken into account in developing plans for the project. Modifications can often be made easily at the planning stage which later would cost a great deal of time and money. The provisions of Article 7 are very relevant here. Only with up-to-date surveys, inventories and maps of archaeological sites can the process of consultation work effectively.

In certain circumstances, it may be decided that the project has to go ahead even though this will damage some aspect of the archaeological heritage. The Icomos Charter specifically states that excavation should be carried out in these circumstances. Article 5, paragraph ii.b, embraces this principle and requires States to ensure that consultation takes place so that adequate time will be given "for an appropriate scientific study to be made of the site" and the necessary funds provided. Here, Article 6 is relevant as indicating a source of funds.

Inevitably, some sites will come to light during the course of excavations for development work. Article 5, paragraph iv, recommends preservation in situ as far as feasible. How this is done will depend largely on the nature of the site and what is being constructed. One method is to excavate the site and then cover over the remains so that the building or construction can take place on top of it. The site is thus recorded and available for researchers of the future. In other instances the site can be public access. Here, paragraph 5, once more emphasises the scientific nature of archaeological sites.

Article 5, paragraph v, recognises that, although the public has a right of access to archaeological sites, this cannot be at the expense of the archaeological and scientific character of those sites and their surroundings. Whatever arrangements are made for public access, they have to take account of that character.

Constructions should not be obtrusive on the landscape nor alter the physical conditions of the site, as by changing water runoff, wind patterns, sunlight dispersion, etc.

Article 6

This article deals with the provision of financial support for archaeological research. The organisation of such research and its administration differ from country to country. Article 6 takes account of this by requiring public financial support to come from national, regional and local authorities in accordance with their competence. However, the significant point is that the revised Convention requires States that become Parties to the Convention to arrange for public financial support for archaeological research no matter what its origin.

Paragraph ii of this article is highly significant as it places on those responsible for development projects the burden of funding archaeological activities necessitated by those projects. This approach appears in the Unesco Recommendation concerning the Preservation of Cultural Property endangered by Public or Private Works (19 November 1968), in the Council of Europe Recommendation No. R (89) 5 and in the Icomos Charter. The archaeological heritage according to the revised Convention is "a source of the European collective memory" and in the words of the Icomos Charter is "common to all human society". It must therefore be protected, but the cost of protection should not be borne by the public when the cause of that cost lies in a benefit accruing to private interests. Those benefiting from development work are also responsible for preserving what their activities have disturbed.

Major public or private development schemes should provide for archaeological survey work and a full recording of the findings in the same way that provision is made for environmental impact studies.

Consequently, provision should be made allowing archaeological excavations as required by Article 5 and in such a way that the full cost of these is met for public or private resources as appropriate. Incorporated in these costs are the "full" recording and publication of the findings, meaning thereby the stages of work comprising the post-excavation period. The budget, therefore, needs to cover an assessment phase where the potential of the data collected is ascertained and the nature of further studies identified. This will be followed by analysis of the data through the production, first, of a research archive containing catalogues and reports drawn from detailed work on stratigraphy, artefacts and environmental material. Finally, there comes the report drawn from material in the research archive.

Article 7

The necessity of having up-to-clate surveys, inventories and maps of archaeological sites, as required by Article 7, paragraph i, has already been illustrated under Article 5. It is impossible to launch land preventive administration.

Excavation of an archaeological site implies, as the Icomos Charter states "the necessity of making a selection of evidence to be documented and preserved at the cost of losing other information and possibly even the total destruction of the monument". The site can never be put back together in its totality. As excavation should only be for a scientific purpose, there is then an obligation on the part of the excavator to disseminate the information obtained from the excavation.

The distribution of information is also crucial to achieving other objectives stated in this Convention, for example, public education under Article 9.

Normally, the information is made available through publication of results. This may not take place till long after the archaeological operation itself is over, as often there are many specialists whose work has to be co-ordinated and whose combined findings have to be analysed. The article does not go so far as to mandate publication but requires States to take "all practical measures" to ensure the publication of, firstly, a scientific synthesis, or preliminary report, of the archaeological operation, and, secondly, a final, comprehensive study. The first would reveal what was discovered during the operation, the second would be a comparative analysis of the results of the operation.

Article 8

This article deals with the dissemination of information resulting from work on the archaeological heritage. The first method is through the exchange of elements of the archaeological heritage which States are obliged to facilitate. It may be essential for many purposes. Objects are used to train future archaeologists and other specialists. Exchange may also allow elements of the archaeological heritage to be subjected to more advanced scientific examination than would otherwise be the case through, for example, the use of rare and expensive equipment. These exchanges between archaeologists and between institutions for scientific research are thus essential to the science of archaeology. It is up to States to ensure that no obstacles are placed in the way of such exchanges, wheter national or international. States, under this article, are also required to work positively to establish a climate conducive to exchanges by, for example, establishing bilateral arrangements and procedures facilitating the process.

The second aspect of dissemination is an undertaking on the part of States to promote the pooling of information on archaeological research and excavations in progress. Discoveries in one State will often be very relevant to research in other States. Similarly, the second requirement of Article 8, paragraph ii - the organisation of international research programmes - will facilitate an integrated approach to resolving scientific problems common to areas covering more than one State.

Article 9

Article 9, paragraph i, refers to the crucial problem of public awareness. Ultimately, all archaeological work is for the benefit of the general public - establishing for people an understanding of where they have come from and why they are as they are. It is through this work that history is established and the creations of past civilisations brought to light. The public has a great interest in these matters and has had for many years. Nevertheless, the public interest must be nurtured and expanded. Not only does this lead to a more educated and knowledgeable public body but it contributes; to greater protection of the archaeological heritage itself. A public aware of the value of this heritage will be less willing to let it be damaged or destroyed; such a public may also be prepared to devote resources to extracting further information from the heritage.

In order to fully appreciate the value of the archaeological heritage, the public must have access to sites and objects. This is a crucial part of the educational process and an essential method of promoting an understanding of the origins and development of modern societies. The Icomos Charter states: "Presentation and information should be conceived as a popular interpretation of the current state of knowledge, and it must therefore be revised frequently. It should take account of the mu Iti-faceted approaches to an understanding of the past. "

Having stated that the public has a right of access to the past in the form of the archaeological heritage, it must at the same time be recognised that, in particular circumstances, such access would have to be denied in order to preserve the heritage. For example, certain caves containing prehistoric rock art have been closed because public access raises the humidity level and causes bacterial growth leading to decay of the paintings. Where access has to be denied, alternative methods of presenting the site should be investigated by, for example, full-scale replicas or interpretative displays.

Article 10

This article contains a number of obligations that States, on becoming Parties to the revised Convention, would undertake in order to prevent the illicit circulation of elements of the archaeological heritage. The text of the article indicates that by "illicit circulation", in this context, is meant dealing in objects coming from illicit excavations or unlawfully from official excavations. The former are excavations which have not been authorised in accordance with the procedures required to be put in place under Article 3, paragraph i. Official excavations are those which have been so authorised. It is impossible to entirely prevent elements of the archaeological heritage being removed from these sites unless the most stringent searches were to be imposed, and even then they would not be one hundred per cent successful. The market value of many objects found in the European context is such that temptation will overcome sanctions and safeguards will be circumvented. The best guard against activities of this nature is education of the public in the issue involved, particularly the fact the wrenching an object from its context destroys not only the scientific value of the object itself but also damages the sites from which it came. The illicit circulation of objects can be restricted by co-operation between States in informing each other of what is occurring and notifying when a suspect object appears on the market.

Against this background, Article 10 requires States to arrange for pooling of information on illicit excavations. In establishing this pooling system, States will take account of legislation on respect for privacy. States also undertake to inform other member States of offers of objects suspected of coming from illicit excavations or unlawfully from official excavations. It must be emphasised that these obligations do not oblige States to take positive action, to actually go and seek information on illicit excavations or suspect offers. States are only required to take the action specified when such excavations or offers come to their attention.

The restriction in Article 10, paragraph iii, is one that many museums already incorporate in their statements of collecting ethics or have incorporated in their governing statutes. The International Council of Museums, in its 1986 Code of Professional Ethics, stated that a museum should not purchase objects where there is "reasonable cause to believe that their recovery involved the recent unscientific or intentional destruction or damage of ancient monuments or archaeological sites, or involved a failure to disclose the finds to the owner or occupier of the land, or to the proper legal or governmental authorities" (paragraph 3.2). In many States the practice has been adopted by private museums as well as public ones. Consequently, the obligation imposed by Article 10, paragraphs iii and iv, on States will reinforce that practice and force those institutions which have not adopted a policy on this matter to reconsider their stand.

During the drafting stage of the revised Convention, certain delegations noted that, in practice, it could arise that museums acquired unlawfully excavated objects in order to prevent them from destruction. It was also accepted that the provisions contained in Article 10 would not be applied retroactively.

Article 11

The basic legal and practical problems involved in preventing unlawful trade in elements of the cultural heritage are very complex. These problems are beyond the scope of a convention dealing basically with treatments of sites and archaeological investigation. Consequently, the Convention, in Article 11, states that nothing within it is to be taken as affecting existing or future bilateral or multilateral treaties dealing with these problems. In other words, this Convention cannot be used to interpret, minimise or expand any such treaties.

Instruments existing when the revised Convention was opened for signature should be mentioned, namely the European Convention on Offences relating to Cultural Property, prepared by the Council of Europe and opened for signature in 1985. Another major convention is the Unesco Convention on the means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (Paris, 14 November 1970). As of April 1991, there were sixty-nine States party to this Convention, including, among the members of the Council of Europe, the following: Cyprus, Czechoslovakia, Greece, Hungary, Italy, Portugal, Spain and Turkey. Of the five States with special guest status within the Council of Europe, three - Bulgaria, Poland and Yugoslavia - are party to the 1970 Unesco Convention.

Central and eastern European States may be affected by the Agreement between the Socialist States on Co-operation and Mutual Aid Concerning the means of Detention and the Return of Cultural Property Illicitly transported across State Borders, 1986.

Other international draft agreements are under consideration at the time of opening for signature of the present revised Convention.

Article 12

The provision of technical assistance is one very effective way in which States can work together in protecting the archaeological heritage.

The second paragraph of Article 12 deals with desirable expansion of exchanges of persons in the various occupations and trades involved in the conservation of the archaeological heritage. It refers specifically to those responsible for training in the various occupational sectors. This has been emphasised in the Icomos Charter: "High academic standards in many different disciplines are essential in the management of the archaeological heritage. The training of an adequate number of qualified professionals in the relevant fields of expertise should therefore be an important objective for the educational policies in every country." The specialists mentioned should include not only archaeologists and those trained personnel associated directly with the interpretation of data but also those concerned with the presentation of sites to the public.

The possibilities offered by in-service training would seem to facilitate occasional or prolonged mobility of the kind indicated. It would be expedient for national or regional in-service training regulations to be adjusted where necessary. In addition to training courses, vocational regulations should make provision, if they do not already do so, for the reception of specialists who wish to practise their occupation or trade in countries other than their country of origin.

Article 13

In order to ensure that the revised Convention is implemented as efficiently as possible, the appointment of a committee to monitor its application was deemed desirable. A similar committee is mandated for the architectural heritage in the Convention for the Protection of the Architectural Heritage of Europe, 1985.

The committee is required to report periodically to the Committee of Ministers of the Council of Europe on the situation of archaeological heritage protection policies in the States Parties to the Convention.

The committee will further be required to propose measures to the Committee of Ministers to facilitate the revised Convention's application. These measures may be proposals for recommendations to member States, proposals regarding the Council of Europe's inter- governmental work programme and any other proposals concerning multilateral international co-operation and the information and motivation of Sstates, local authorities and the European public.

The committee will also be required to make recommendations to the Committee of Ministers regarding invitations to non-member States of the Council of Europe to accede to the revised Convention.

Articles 14 to 18

The final clauses contained in Articles 14 to 18 are based on the model final clauses for Council of Europe conventions and agreements.