Archaeological and/or Historic Shipwrecks © EKE Boesten, LL.B., LLM
Posted 12/15/'98

One of the problems encountered when speaking about the protection of the underwater cultural heritage is the definition of archaeological and historical shipwrecks. Although lively debates are held between archaeologists, salvors, historians and public policy makers alike, none of these groups are able to provide a clear definition.

Article 149 archaeological and historical objects All objects of an archaeological and historical nature found in the Area shall be preserved or disposed of for the benefit of mankind as a whole, particular regard being paid to the preferential rights of the State or country of origin, or the State of cultural origin, or the State of historical and archaeological origin.

and Article 303 reads:

Article 303 Archaeological and historical objects found at sea 1. States have the duty to protect objects of an archaeological and historical nature found at sea and shall co-operate for this purpose. 2. In order to control traffic in such objects, the coastal State may, in applying article 33, presume that their removal from the sea-bed in the zone referred to in that article without its approval would result in an infringement within its territory or territorial sea of the laws and regulations referred to in that article. 3. Nothing in this article affects the rights of identifiable owners, the law of salvage or other rules of admiralty, or laws and practices with respect to cultural exchanges. 4. This article is without prejudice to other international agreements and rules of international law regarding the protection of objects of an archaeological and historical nature.

Both articles 149 and 303 LOSC use the terms archaeological and historical which seems to be at odds with the common meaning to which the Vienna Convention on the Law of Treaties refers. While both terms involve the scientific study of material remains of past human life and activities, archaeological and historical are inherently distinct. Whilst the latter recognises that interpretation can take place within a richer context of established knowledge, the former in lacking such established context, must proceed with an unusual degree of care.

In an endeavour to find a way around the problem various parties tried to define the terms by reference to a common time limit to define the scope, although time limits are subject to many debates. The negotiating history of LOSC in this respect reveals much discussion on this point with initial proposals for Article 149 including a time limit of 50 years which failed to appear in later drafts of the article and never made it into the final Article 149. Looking for guidance in other international guidelines or Conventions shows that a use of time limit is a common technique for providing definition to the scope of cultural heritage to be protected. Nevertheless, LOSC III failed to define the application in this respect.

This leaves room for disagreement by commentators as to whether or to what extent such criteria are applicable at all. Some commentators say that an object/wreck needs to be at least a couple of hundred years old to qualify as archaeological and historical. Another suggested that since national legislation indicates towards a time limit between 100 and 200 years, a fixed period of 100 years qualifies as a reasonable time limit. Yet another recommended a threshold of 50 years to be applied.

Overall it seems that there are two views. One based on a qualitative approach following the functional requirements implicit in definitions of archaeology and history and one based on more formal approach distinguishing between those who favour an inclusive rather than an exclusive interpretation. Either the term archaeological and historical only covers objects/wrecks that are many hundreds years old or it covers anything counting from 50/100 years under water. International recommendations or Conventions as well as national legislation supports the latter. Moreover, looking back at Articles 149 and 303, no indication can be found in the traveaux preparatoires that protection only extends to century old objects.

One way in which, for purposes of practical implementation of Articles 149 and 303, this difficulty could be managed is to set a time limit with a reputable presumption, which can be displaced by sufficient contrary argument. This is supported by the UNESCO draft on the protection of the Underwater Cultural Heritage which set a time-limit of 100 years but with the option for States to include wrecks of less years of ages. Of course the presumption should work both ways and it should be possible to exclude wrecks, which are included in the set time limit, from measures of archaeological and historical protection. Although the UNESCO Draft fails to provide for a two-sided application, this does not prevent such an interpretation of LOSC III.

Whether an objective definition is necessary or whether it is enough when a State merely has an interest, from an archaeological and/or historical perspective is a question answered by a third view which connects the protection offered to the objects itself. Whether an object has value to mankind in an archaeological or historical way would be determined by the characteristics of that particular object and the interest a State pays to the object rather than a formalistic time limit. This view supports that the objects itself are capable of fulfilling the purposes of protection of Articles 149 and 303. Whether or not the significance of an object can be measured by the funds a State is prepared to spend on the object, which would be the determinative question in this view, will be answered in the conclusion of my thesis.

© Eke Boesten Article 33 on the Contiguous zone reads: 1. In a zone contiguous to its territorial sea, described as the contiguous zone, 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. 2. The contiguous zone may not extend beyond 24 nautical miles from the baselines from which the breath of the territorial sea is measured. [...] 2. The recovery and disposal of wrecks and their contents more than 50 years old and found in the Area. [...]. Informal Single Negotiation Text, Art.19, 4 UNCLOS III Off. Rec. p. 140, UN Doc. A/CONF.62/WP.8 (1975). See A.C. Arend, Archaeological and Historical Objects: The International Legal Implications of UNCLOS III, 22 Virginia Journal of International Law (1982), p. 791. The Revised Single Negotiation Text Art. 19, 5 UNCLOS III Off. Rec. p. 131, UN Doc. A/CONF.62/WP.8/Rev.1 (1976). The RSNT lacked any indication of time and remained to be missed in all succeeding versions. See A.C. Arend, Archaeological and Historical Objects: The International Legal Implications of UNCLOS III, 22 Virginia Journal of International Law (1982), p. 792. Recommendation 848 (1978) of the Council of Europe on the Underwater Cultural Heritage applies a time limit of 100 years beneath the water, in Article 1. UNESCOís Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (1970), in Article 1 states a time-limit of....years. Moreover, the Draft European Convention on the Protection of the Underwater Cultural Heritage (1985) states in Article 1 (2) a time limit of 100 years. Oxman stated in this respect ìThe provision is not intended to apply to modern objects whatever their historical interest. Retention of the adjective ìhistoricalî was insisted upon by Tunisian delegates, who felt that it was necessary to cover Byzantine relics that might be excluded by some interpretations of the word ìarchaeologicalî. [...] the term archaeological objectsî [...] does at least suggest the idea of objects that are many hundreds of years oldî Moreover he expresses that what is unquestionable covered by these terms is anything before 1453, the fall of Constantinople and the final collapse of the remnants of the Byzantine Empire with an exception for the Americas (1521- the fall of Tenochtitlan and 1533- Cuzco). B.H. Oxman, The third United Nations Conference on the Law of the Sea: The Ninth Session (1980), 75 AJIL (1981), p. 211, 241 n. 152. A. Strati, The Protection of the Underwater Cultural Heritage: an emerging objective of the contemporary law of the sea (1995 Martinus Nijhof Publishers), p. 176-178. C.F. Newton, Finders Keepers? The Titanic and the 1982 Law of the Sea Convention, 10 Hastings International and Comparative Law Review (1986), p. 159-160. See for an overview of national time limits: A. Strati, The Protection of the Underwater Cultural Heritage: an emerging objective of the contemporary law of the sea (1995 Martinus Nijhof Publishers), p. 179-180. In the case of an archaeological qualification one could argue that the object adds new knowledge to the understanding of mankind or serves marine archaeology as a science. Other objects could be of historic significance because of a cultural, emotional, educational or other qualification. Since anything that happened a day ago can already been seen as a historical event, wrecks can be regarded as witnesses of these events with specific value attached.

That this view raises problems is obvious since who will determine whether something needs protection. However this may be, the latter question is not much different from the result of the current phrasing although inspired by different thoughts. The current phrasing does not limit the scope with a time limit leaving thereby the interpretation open to States and commentators.