The International Convention on the Underwater Cultural Heritage

A Critique May 14, 1998

In late April, 1998 the United Nations Educational, Scientific & Cultural Organization ("UNESCO") issued its draft of an International Convention on the Underwater Cultural Heritage ("Convention") which will be discussed in a Paris meeting of invited experts in June, 1998 as the first step in its ratification. Their timeline for presentation of the Convention to the UNESCO General Assembly is November, 1999. The General Assembly approves virtually all of the proposals put before it. Thereafter, the Convention goes out to UNESCO member states for ratification; again, whenever a proposal has been approved by the UNESCO General Assembly, it is generally enthusiastically embraced by member states. Thus, passage and enforcement of the Convention could occur in as little as three (3) years from today.

The best opportunity to defeat or amend a proposed multi-lateral treaty like the Convention is during the initial drafting and approval stages, such as the upcoming Paris meetings. However, those of us opposed to the Convention as presently drafted face a decidedly uphill struggle. The invited "experts" are exclusively government bureaucrats or academicians with little or no diving experience who are collectively and implacably hostile to any role for the private sector or any other non-governmental underwater exploration. The depth of this hostility is evident from a reading of the draft Convention.

In essence, the Convention declares anything of value found underwater to be the property of some government. "Underwater cultural heritage" is defined as "any trace of human existence underwater"--including not only historic shipwrecks, but everything from broken surfboards to yesterday's beer cans thrown over the transoms of recreational fishing boat (Article 1, #1).

The Convention effectively gives coastal nations title to all abandoned shipwrecks on its continental shelf or 200 miles offshore, whichever is greater. It presumes abandonment 25 years after sinking; abandonment is absolute after 50 years (Art. 1, #2). The only exception: "sovereign" shipwrecks--naval vessels, aircraft or even naval auxiliaries--that are deemed the property of the original government in perpetuity (Art. 2, #2). Wrecks recovered from further offshore--even those found in international waters--cannot lawfully be landed at any State Party's port. (Arts. 6, 7).

Article 6 changes existing international Law of the Sea dramatically by requiring coastal states to exercise jurisdiction over the underwater cultural heritage beyond the presently-accepted limit of the Contiguous Zone (i.e., out to 24 nautical miles offshore). Nations may exercise jurisdiction over activities taking place even further offshore--that is, on the high seas subject to the exclusive authority of no nation or even within the continental shelf of another nation--by mandating that State Parties prohibit its own citizens and vessels flying its flag from violating any provision of the Convention. (Art. 7).

From an underwater explorer's perspective, the most objectionable provision of the UNESCO draft Convention is found in Article 12, which mandates that any nation signing the Convention nullify any law or regulation that creates any commercial incentive for the recovery of the underwater cultural heritage. Article 12 proposes to negate several thousand years of admiralty law precedence, whose venerable salvage award has long and effectively provided an economic incentive for the finder of valuable property to act in good faith--and, in the case of historic shipwrecks, mandates that good archaeology be performed on salvage operations under the jurisdiction of admiralty courts.

Moreover, Article 12 effectively cancels any state-issued permits providing for any distribution and/or division of artifacts recovered between that nation and any salvor, as this constitutes "commercial incentive" for salvage. Presumably, the result will be that the only legal salvage will be state- sponsored shipwreck excavations in which all of the artifacts recovered remain the property of the government. All other artifact recovery will be in violation of the Convention, and hence illegal and subject to the international enforcement provisions thereof.

The Convention's goal of achieving the wholesale international prohibition of privately-funded shipwreck archaeology and recovery is made more evident by its endorsement of the Charter of the International Council of Monuments and Sites ("ICOMOS")for the Protection and Management of the Underwater Cultural Heritage, which establishes baseline standards for underwater archaeological excavations (Art. 24). Nearly all of the provisions of the ICOMOS Charter are acceptable to conscien-tious shipwreck salvors and in fact are incorporated into the existing archaeological standards enforced by U.S. admiralty courts exercising jurisdiction over the salvage of historic shipwrecks.

However, the ICOMOS Charter provides that "[U]nderwater cultural heritage is not to be traded as items of commercial value" thereby prohibiting the sale of any artifacts recovered from a shipwreck site, regardless of their redundancy, lack of archaeological significance, or value. Thus, without explicitly stating its goal of eliminating free enterprise from any role in the legal exploration and excavation of shipwrecks, the Convention quite clearly aspires to do so.

While existing admiralty law relies on incentives for a salvor to act properly, UNESCO's proposal takes the opposite tack and provides for the seizure of underwater cultural heritage recovered in a manner not conforming with the Convention's provisions (Art. 9). The UNESCO proposal further mandates criminal or administrative (i.e., fines) sanctions for the importation of artifacts otherwise subject to seizure under Article 9 (Art. 10), while requiring the cooperation of nations to ensure that these punitive measures are enforced (Arts. 11, 13). The proposed enforcement regimen is further complicated by the inclusion of states with a "national heritage interest" in the particular underwater cultural heritage at issue (Art. 13). Thus, the question of ultimate disposition of a recovered shipwreck cargo will rely on consultation with the nation in whose waters (or further offshore) the wreck has been found, the flag state of the vessel, if any, and any states with a national heritage interest in any of the cargo or artifacts. This presents a particularly complex--indeed onerous--mechanism for the resolution of the inevitable disputes that arise upon the discovery and excavation of historically significant and/or monetarily valuable shipwrecks.

An example of the unwieldy negotiations which could ensue is George Bass' famous excavation of a Phoenician (i.e. Lebanese) Bronze Age trading vessel off Ubuluran on the coast of Turkey, which was carrying cargo from ancient Egypt, Palestine (Israel?), Mycenae (Greece), and Cyprus (Greece and/or Turkey). These issues are made even more intractable by the Convention's stated preference that collections of artifacts recovered from a particular shipwreck be kept together in perpetuity (Art. 12, #1).

The Convention requires an initial effort at arbitration for the resolution of international disputes over the disposition of the underwater cultural heritage. If unsuccessful, the Convention vests jurisdiction in the International Court of Justice in The Hague, Netherlands (Art. 19). The balance of the Convention is comprised of rather generic principles of international treaties relating to ratification, reservation, amendments and denunciation. Education and training in underwater archaeology are extolled; to its credit, the UNESCO draft has excluded the incendiary language of its predecessor, the International Law Ass'n, which branded all divers and salvors to be "looters" and "the destroyers of our past".

Commentary

Ironically, on April 22, 1998, the United States Supreme Court unanimously ruled in favor of Deep Sea Research, Inc. ("DSR"), the finders of the 1865 California Gold Rush shipwreck, Brother Jonathan and against the State of California, which had unsuccessfully sought to prevent DSR from carrying out its archaeological recovery operations. All nine justices rejected the California's contention--one of the core provisions of the UNESCO Convention--that the wreck should be presumed abandoned, and hence, the exclusive property of the state. This powerful Supreme Court precedent is a ringing endorsement of the continuing vitality of the provisions of admiralty law that the Convention seeks to eliminate.

The proposed Convention cannot diminish nor stop the evolution of technology that is ever making underwater exploration easier and safer. What this ill- conceived proposal can and will do, however, is to guarantee that shipwreck finds will never be reported to any government: these sites will be clandestinely looted--stripped of artifacts without recourse to archaeological recordation--while anything of value will simply be sold on the black market. The world's governments cannot effectively police archaeological sites on land; to expect them to be able to do so underwater is utter folly.

The newly-created trade organization, the Professional Shipwreck Explorers Ass'n. ("ProSEA") intends to use all efforts to prevent passage of the draft Convention without significant revision. ProSEA hopes to bring several representatives versed in shipwreck archaeology and recovery and sympathetic to our cause to UNESCO's meeting of experts in Paris in June, 1998. To be able to do so, however, requires the cooperation and financial support of those persons, entities and companies with an interest and stake in the future of undersea exploration.

Among the goals of ProSEA are to create alliances with all of those with either an economic stake or merely a strong interest in shipwrecks and underwater exploration, including commercial salvors, recreational divers, marine underwriters, archaeologists, museums, fishermen, equipment manufacturers and suppliers, and the like. There is strength in numbers: we far outnumber the small clique of bureaucrats and academicians seeking to gain control of all the world's shipwrecks for themselves.

Moreover, we enjoy overwhelming public support for the idea that those who put their own money, blood, sweat and tears into underwater discovery and excavation should be duly compensated for their efforts. This is a fundamental provision of existing admiralty law that has worked successfully for millenia: it is supremely ironic that in the name of historic preservation, the proponents of the UNESCO Convention seek to eliminate an historic institution: the world's admiralty courts and the august body of law that continues to evolve, ensuring that salvors of historic shipwrecks act in good faith and conduct good archaeology as an integral part of the recovery operations.

ProSEA trusts that you will sign on and become a member, joining us in recognizing the threat posed to our common area of interest and in working together toward an equitable and effective international agreement that guarantees our continuing worldwide leadership the exploration, discovery and excavation of historic shipwrecks.

PETER E. HESS, Esq.