. . Jack Fullmer is the Legislative Director of the New Jersey Council of Diving Clubs, encompassing several dozen clubs and several thousand scuba divers. He has conducted numerous archaeological diving expeditions in New Jersey, finding and documenting Revolutionary War shipwrecks in both Crosswicks Creek off the Delaware River and in the Mullica River which empties into the Atlantic north of Atlantic City.

. . He helped Archaeologist Dr. Duncan Mathewson and Admiralty attorney and tech-diver Peter Hess run a very successful underwater archaeological field school in 1985-6 on the Mullica River wrecks. Jack's expertise in underwater archaeology underscores his knowledge of the subject and enhances the credibility of his excellent critique of the proposed UNESCO Agreement .

. . Most people--and recreational divers in particular--would suppose that an international treaty seeking to protect underwater cultural heritage, like a beautiful angelfish, should be admired. Yet when one takes a closer look, the seemingly laudable UNESCO Convention has, in reality, the disposition--and the jaws--of a hungry shark. Divers and anyone else with an interest in underwater exploration ought to very wary of the Convention and its truly frightening intent to lock away the undiscovered history beneath the world's oceans.

The Convention defines "Underwater Cultural Heritage"(UCH) in the broadest possible terms: any shipwreck, plane, vessel, site, or any trace of human existence which has been partially or totally underwater for at least a 100 years. The treaty applies to any UCH in a country's Contiguous Zone (3 to 200 nautical miles offshore) and the continental shelf, which could be well beyond 200 miles, and indirectly to its internal waters. It then repeals the "law of salvage and finds unless an activity is in full conformance to the Convention and Rules." Maritime law, which for literally thousands of years has provided incentive for intrepid mariners to rescue imperiled persons and property on the seas, is simply and conveniently eradicated .

. . The Convention dictates that any master of a boat or resident of a signatory nation ("state party") report the discovery of underwater cultural heritage to the country in whose Contiguous Zone or Continental Shelf the discovery was made, or even in the Area further seaward. The Convention then requires a state party to report any discovery of UCH to the Director General, who in turn reports this find to other state parties, any one of which can express an interest in the find based on some theoretical link. No activity can be directed at that UCH without the agreement of the consulting countries. The treaty requires a state party to seize UCH in it territory that has been recovered in any manner inconsistent with the Convention or its annexed "Rules". The Rules are to be followed for any access to and recovery of UCH; they mandate that a qualified professional archaeologist be present. Irrespective of its significance, The Rules prohibit any UCH from ever being traded, sold, bought or bartered as commercial goods! And the Rules provide absolutely no guarantee of public access to UCH: they do not even deign to state that public access is desirable.

Problem One, and perhaps the most obvious defect with the Convention is that it is treats shipwrecks over 100 years old solely as an archaeological resource. Yet archaeology is a very, very minor use of our shipwreck resources. Probably not one person in a thousand that visits shipwrecks in the ocean, including shipwrecks over a hundred years old, is an archaeologist or part of an archaeological survey. (Interestingly, while much of the oceans' UCH is shipwreck-related, century old rubbish receives the same degree of UNESCO protection and cannot be removed from the seabed without an archaeological director to study the clean up!)

. . Yet the primary use of any shipwreck in the ocean--including those of a century or greater vintage--is as a fishery resource. Shipwrecks attract specific types of fish and are intensively fished by both commercial and recreational fishermen. Shipwrecks act as reefs in an otherwise barren sea bottom. New Jersey's sport diving, recreational fishing and commercial fishing economies are dependent on our shipwreck reefs. Any management tool that totally ignores the primary use of a resource in favor of an extremely minor use is a poor management tool indeed. Shipwrecks are a multi-use resource and can only be effectively managed that way. Now this wouldn't be a terrible problem if 100-year-old shipwrecks were rare, but that is not the case! Based on known shipwrecks off the New Jersey coast, I would estimate that almost half the shipwrecks in the ocean have been sunk for more than a century.

. . This brings us to Problem Two with the Convention: access to shipwrecks (UCH) by it primary users is not guaranteed. Essentially this document would allow a small clique of archaeologist and government cultural resource managers to determine if access is "incompatible with protection and management." And the cultural resource manager that would be making that decision would have nothing to do with the other users--such as recreational or commercial fishermen--because the treaty defines this resource solely as "Underwater Cultural Heritage."

. . The real scary thing about the Convention is that it could be applied to anyone who merely tries to visit a shipwreck or fish on a shipwreck. The definitions allude to "Activities incidentally affecting underwater cultural heritage...., which may physically disturb or otherwise damage underwater cultural heritage" (Article 1). Without a guarantee of access, you will see many situations where a shipwreck that has been fished and dived on for 50 years is suddenly off limits to anyone except the chosen few.

. . Problem Three is the extremely short sighted and arbitrary "reporting and notification requirement." This requires anyone that discovers a shipwreck in the contiguous zone, the continental shelf, or the area beyond to immediately report this discovery to the appropriate state (country). The problem here is that if you do so, you may not be able to visit it again as the government could decide that "access is incompatible with protection and management." Or they could decide that no one is allowed to visit it until the wreck has been examined by a professional archaeologist, and of course there is no money for a survey by a professional U/W archaeologist.

. . Obviously, this would be a very negative incentive to report shipwrecks, even if the treaty threatens to punish people that don't. There is also that other little problem that undiscovered shipwrecks do not normally come with signs that say, "This wreck is over a hundred years old and has never been discovered before."

Problem Four is the flip side of the notification requirement, an international consultation mandate. If a person reports a shipwreck discovery to a nation, that country is required to report it to the UNESCO Secretary-General, who is then required to notify all countries that have signed the Convention. That alone is a reporting nightmare since there are thousands upon thousands of shipwrecks off the Jersey coast alone, not to mention the other U.S. coastal states. Any signatory nation could declare an interest in the reported shipwreck by postulating some sort of connection to the shipwreck, such as the ship having been built in their country. If this happens, the Coordinating State (country) "Shall implement measures of protection which have been agreed by the consulting states."

. . Therefore, if the consulting countries decided that no one should be allowed to fish or dive on the wreck, they could force such a prohibition upon the nation is whose waters the wreck lies. This would allow any country to interfere with legitimate archaeological surveys, salvage efforts, or even fishing on shipwrecks that are not naval warships or flagships. In a sense, the Convention is extending sovereign immunity to any shipwreck that any other country expresses an interest in!

. . Problem Five is that the Convention is expanding a country's jurisdiction well into international waters. Previously, a country only had very limited rights in the contiguous zone over natural resources and fishing. Now this is being expanded to what is tantamount to government ownership rights over almost all man-made objects, which actually may still be claimed by their former owners or insurance companies. The Treaty is undoing established Admiralty Law and giving extended government jurisdiction to what could be well beyond 200 miles with the continental shelf concept, provided that country agrees to enforce an extreme archaeological doctrine.

. . Countries will next be claiming fishing and oil rights for the entire continental shelf far beyond 200 miles. This threat of dividing up the ocean is one of the reasons the U.S. delegation has not endorsed this treaty. The underdeveloped countries see it as a method of gaining additional territory and jurisdiction, not to mention control over treasure wrecks and possible future oil and fishing monopolies beyond 200 miles.

. . Problem Six is the Convention's demand that underwater cultural heritage not be traded, sold, brought or bartered. At first this sounds like a good idea, but think again. If this were applied to objects on land, nobody could sell a house over a 100 years old. Antique dealers would all be criminals! Museums could not pay to acquire archaeological specimens, and so on. It's such a bad idea that Rule 2 of the Rules immediately starts making exceptions to itself. Why should cultural heritage be traded and sold when found above water, but be illegal to be sold if found below water?

. . Problem Seven is the arrogant and punitive nature of the treaty. The treaty demands countries pass rules that anyone reports the location of shipwrecks, demands that they accept the Rules, demands that they impose severe sanctions for violations of the convention, demands that the country prohibit the possession of UCH not recovered by the Rules, demands that they seize any UCH recovered inconsistent with the Rules, demands that UCH be reported to the UN, demands that UCH not be traded or sold, and so on. No deviation from this archaeological dogma is permitted, even if it doesn't make sense as a management tool. Truly, the dictatorship of the archaeologist/bureaucrat has arrived.

. . Problem Eight is that the tricky treaty is deceptive. The treaty first says a country has the exclusive right to regulate and authorize activities directed at UCH in its internal waters, archipelagos waters and territorial sea. It then turns around and says that state parties shall require that the "Rules" be applied to activities directed at underwater cultural heritage in their internal waters, archipelagos waters and territorial sea. Therefore, a country does not have a right to write its own rules in its own territorial sea or internal waters! By doing this, the treaty just negated the flexibility Congress gave to states to design their own rules by the Abandoned Shipwreck Act.

. . Problem Nine is the "Rules" themselves. The rules are obviously intended as complex rules for archaeological excavations. But they are being applied to every shipwreck over 100 years old, even if that shipwreck is of little archaeological importance and of no historic importance. The Convention defines UCH so that almost anything over a hundred years would be included other than pipelines and cables, and then affords what can only be described as fanatical protection. If the shipwreck were to be found to be unimportant archaeologically, you would still have to follow all the Rules and the Convention. The Rules are also being applied if the only intent is to recover an item to identify the wreck or to recover an artifact for a museum. Most of the shipwrecks off the coast are not identified by archaeologists, but by interested sport divers who may need to sample small items to date and identify the wreck. Yet this treaty would not allow any amateur or avocational approach, and would demand a paid professional archaeologist be present along with a complex and expensive project design. This would make it very difficult and expensive to even determine if the wreck is 100 years old! It would also discourage the avocational mapping, identification, and research on shipwrecks, which constitutes most of what you and I call underwater archaeology in this country.

. . The Rules also demand adequate and long term funding for any U/W archaeological project. I have participated in a number of archeological projects with professional U/W archaeologists, none of which was adequately funded and all of which were run on a shoestring. This treaty and its Rules would make almost any U/W archaeology difficult to impossible to conduct in the real world. It would also make it very, very expensive. The net result would be to discourage almost all U/W archaeological projects.

. . Problem Ten is the contradiction between the existing Abandoned Shipwreck Act (ASA) and the UNESCO Treaty. The federal Abandoned Shipwreck Act, which gave states control of shipwrecks in state waters, established a policy of the Congress toward shipwrecks, which included "guarantee recreational exploration of shipwreck sites." This policy was put in the ABA by Congress to reiterate to states that the resource is not the private preserve of a small group of archaeologists and government resource managers. Apparently the UNESCO Treaty thinks otherwise because no such policy was put in the UNESCO Treaty.

. . Another policy of the Congress was to "allow for appropriate public and private sector recovery of shipwrecks consistent with the protection of historical values and environmental integrity of the shipwrecks and the sites" and "recognize the interests of individuals and groups engaged in shipwreck discovery and salvage." In other words, the ASA recognizes legitimate exploration and commercial salvage of shipwrecks provided it is done in an acceptable environmental and historical manner.

. . . . The UNESCO Treaty and its Rules is trying to ban all private recovery or salvage of shipwrecks. It makes statements such as, "The commercial exploitation of underwater cultural heritage for trade or speculation or its irretrievable dispersal is fundamentally incompatible with the protection and proper management of underwater cultural heritage. Underwater cultural heritage shall not be traded, sold, brought or bartered as commercial goods." And it defines anything over a hundred years as UCH, even if it is not archaeologically significant. The Abandoned Shipwreck Act uses the generally acceptable standards of the National Register of Historic Sites to determine if a shipwreck is truly historic or of archaeological importance, which does ask the key question why something is of archaeological or historic value. Other key concepts in the ASA were to foster a partnership among sport divers fishermen, archaeologists and salvors and other interests to manage shipwreck resources of the States and the United States and facilitate access and utilization by recreational interests. The UNESCO Treaty, however, only mentions archaeologists and government officials and doesn't recognize any other use of shipwrecks except UCH. It's fostering an elitist clique approach to shipwreck management. The philosophy and goals of the ASA and the UNESCO treaty are radically different.

. . Problem Eleven is the stated purpose of the UNESCO Treaty, which is supposed to be "the protection of underwater cultural heritage." However, it appears that the authors of the Treaty (so called government experts) have little understanding of what really causes the destruction of shipwrecks or underwater cultural heritage.

. . In New Jersey at least 10 shipwrecks were buried in one massive sand replenishment project killing millions of fish, destroying the hard habitat associated with the shipwreck reefs, and making access by fishermen, divers, archaeologists and other users impossible. One of those shipwrecks was on the National Register of Historic Sites. Two shipwrecks were pulverized (one inside the borrow area and one outside) by the Army Corps of Engineers (COE) contracted dredge, even though the wreck inside the borrow area was located. The dredge was supposed to avoid the wrecks, and immediately report any wreck material that came up the dredge - which never happened. One of those wrecks hit by the dredge was considered historic.

. . Government sponsored projects and commercial fishing destroys far more shipwrecks than any commercial salvage ever did, yet the Treaty ignores these facts and gives the false impression that the big problem is looters and salvage. The treaty is pushing a fanatical archaeological dogma based mostly on myth. What it should be doing is pushing a realistic management plan to fully utilize our shipwreck resources, and including all its users in its management.

. . In conclusion, The UNESCO Convention on the Protection of Underwater Cultural Heritage is one of the most ill conceived, arbitrary, arrogant, and dogmatic documents ever written! It's pushing an archaeological dogma that never worked in the management of shipwrecks. It doesn't recognize any other users of our shipwreck resources and pretends that archaeology is the one and only thing that matters. It does not guarantee public access to shipwrecks, or access by the principal users of shipwrecks.

. . It allows countries to claim extravagant ocean boundaries that they previously did not have in the very questionable name of protecting UCH. This, despite the fact that the treaty seems to have little understanding of what really causes the destruction of shipwrecks or UCH? It also allows countries to mettle in the affairs of other countries by claiming connection to shipwrecks that they have no legal basis for. The treaty is extremely dictatorial and punitive. It makes all kinds of unrealistic demands that counties and people report shipwreck location, demands that they follow the Rules, demands that they seize anything recovered contrary to the rules, and so on with little or no thought to what this arrogant policy is likely to actually prompt people to do. The treaty will discourage U/W archaeology by making extremely complicated and expensive requirements, and will definitely discourage the avocational mapping and identification of UCH.

. . The treaty is deceptive regarding its policy toward internal, archipelagos, and territorial sea. It does not allow a county to design its own policy if that policy does not totally agree with the "Rules." One really gets the impression that the treaty has more to do with government ownership and control, and pushing a strict archaeological dogma than protection or good management.

. . In essence, the treaty has gone off the archaeological deep end. It's trying to force the entire world to bow down to an archaeological dogma and doesn't care what methods it uses to get to that goal. It is truly a shark disguised as an angelfish.

Jack Fullmer Legislative Director, New Jersey Council of Diving Clubs E-Mail - JF2983182@aol.com

All rights reserved. This publication may not be reproduced, in any form or any means, without the prior permission of the author.

Permission has been granted to the IMAC Digest for this non-exclusive publication. IMAC Digest is published by The IMAC News Association, a not-for-profit organization sponsored by the Institute of Marine Archaeological Conservation, LLC.