The German Society for the Promotion of Underwater Archaeology (DEGUWA) held in February 2008 its annual conference on underwater archaeology »In Poseidons Reich XIII« in Hamburg, which was attended by 118 scholars from 21 different countries. Dr. Ulrike Koschtial (Paris) spoke on behalf of the 2001 UNESCO -Convention on the Protection of the Underwater Cultural Heritage. The urgent requirement to promote this convention was collectively felt in order to counter looting of cultural heritage in the seas; it found its expression in the "Hamburg Declaration".
The UNESCO and the uneven strife for the protection of the underwater cultural heritage
by Dr. Ulrike Koschtial (1)
When in 2001 the UNESCO Convention on the Protection of the Underwater Cultural Heritage (2) was adopted by the UNESCO General Conference - by 88 votes in favour, 4 against and 15 abstentions - it was predictable that the ratification process would become protracted.
The text of the draft Convention was negotiated in often turbulent and controversial debates. Jurists, archaeologists, diplomats and military experts as well as, unfortunately, treasure-hunters, expressed their views.
The situation was unbalanced: there existed - and continues to increase, - a great interest in the exploitation of archaeological sites at the bottom of the sea for the benefit of the art market. This is adverted by the interests of the less well financed and, unfortunately, less media-active archaeologists and museum visitors. The interest of underwater tourism may counter this imbalance, although it is still developing and still lacks enough financial appeal to overcome the economic interest of the immediate exploitation of important sites. Hence at times it appears that the state of the underwater cultural heritage resembles roughly the state of land archaeological sites a hundred years ago.
Apart from the question, whether commercial disposal of underwater cultural heritage should or should not take place, the controversial aspects of the UNESCO Convention also included several issues that are not primarily concerned with the protection of the underwater archaeological heritage.
The United Nations Convention on the Law of the Sea 1982 ("UNCLOS") had come into force only recently before the negotiations of the 2001 Convention started, in 1994 – after lengthy negotiations, hesitations and debates and 12 years after its adoption. The objective to protect the underwater cultural heritage through another Convention thus scared off many States: under no circumstances, they thought, should the monumental and protracted effort to work out the Law of the Sea, which was negotiated over decades, be amended or endangered. This view was so strong that several experts even advanced the view that UNCLOS was an unalterable and ultimate "Constitution of the Seas". What is more, this triggered several disputes over jurisdictional sovereignty in some waters between coastal States and naval powers as well as the immunity of sunken warships.
Nevertheless the constantly worsening situation of archaeological sites under water called for legal protection and this in all waters. The negotiation of an international legal framework was thus indispensable.
Seven years after its adoption the 2001 UNESCO Convention is advancing towards coming into force. So this is a moment to look at its content in order to elucidate points at issue.
1. The content of the Convention
The UNESCO Convention of 2001 was created in order to adjust the protection of heritage under water to that on land and in order to ease and regulate the mode of cooperation between diverse States.
The Convention includes in underwater cultural heritage all remains of human existence, which have lain under water for more than a 100 years and which are of historical or cultural importance. Pipelines and other constructions still in use are excluded.
It seems obvious that the underwater cultural heritage does not deserve less protection than terrestrial cultural heritage. Apart from economic viewpoints there is no reason why cultural heritage under water should not be similarly well protected as on land. Moreover archaeological sites under water tend to be far better preserved than "dry" sites due to their anaerobic and inaccessible nature. Nevertheless there remains a lack of equivalent legal protection. The 2001 Convention was designed to change this.
The text of the UNESCO Convention, however, explicitly regulates that no other agreements, nor sovereignty nor jurisdictional rights are to be altered (3). Nor does the UNESCO Convention contain any provisions on the ownership of discovered cultural resources. This is on one hand due to the fact that opinions on the ownership of cultural heritage sites differ immensely from State to State. On the other hand the identification of wrecks and their former owners can be very difficult, yet an owner in many cases still exists even for old finds (4). Therefore it would have been a difficult and too delicate task to find an arrangement which would do justice to all aspects.
To achieve its goal of protection of the underwater cultural heritage the Convention focuses on the following main aspects :
- The establishment of general protection principles for the underwater cultural heritage;
- the establishment of an international cooperation mechanism; and
- the setting of guidelines for the work of underwater archaeologists (in the Annex of the Convention).
a. The main principles of protection in the 2001 Convention
The main principles of protection of the 2001 UNESCO Convention are, as is to be expected, consistent with the best practice already adopted for cultural heritage on land. They encompass the principle of protection and non-commercialization of the cultural heritage, the prioritization of in situ conservation and the observance of archaeological standards for interventions on submerged archaeological sites and recovery of related objects.
In this respect it should be noted that the Convention supports regardful public access to archaeological sites. Hence it does not represent a "monopolisation" of cultural heritage for archaeologists, but embraces a promotion of its appreciation and protection.
It is insofar no secret that the issue of the refusal of commercialisation is the most problematic challenge of the Convention.
In recent years more than 30 large and historically significant shipwrecks have been looted and destroyed in Asian waters. The Caribbean and the African coast has lost about the same number of important underwater archaeological sites. And as far as Europe is concerned, even after the alarming looting of a historically important wreck off Spain's coast by a commercial treasure-hunting enterprise in 2007, many large companies have displayed interest in marketing the attraction of "treasure hunting", instead of backing Spain in its attempt to regain its cultural heritage.
b. The international cooperation mechanism
In addition to the formulation of main principles of protection, the cooperation mechanism is an important part of the UNESCO-Convention, which will facilitate a cooperation of concerned States. This system was developed in order to fill gaps in the scheme of national sovereign rights at sea.
The further one gets away from a State's coast, the less effectual are its sovereign rights. On the high seas a State has rights only over its own nationals and ships sailing under its flag.
If an archaeological site is looted outside territorial waters, cooperation between coastal States and the country of origin (as well as other interested States) becomes therefore necessary in order to stop looters. This cooperation is regulated in the 2001 Convention. Existing sovereign rights and maritime zones are, however, not the subject of any alteration by the UNESCO Convention.
Roughly sketched, the cooperation mechanism works so that every State prohibits damage or destruction of the underwater cultural heritage, pledges its nationals to report finds or activities and assumes the obligation to notify contractual States of the Convention about reports received on discoveries. These other States can then declare their interest if they can show a historical connection to the archaeological find in question.
States who thus declare their interest will then consult each other and their decisions will be implemented by a coordinating State on behalf of all concerned parties. This coordinating State acts as representative and gains no additional sovereign rights. The legitimacy of action against individuals and ships on the high seas results insofar from the sovereign right of the State of origin, taking part in the consultation (5).
There will certainly arise problems in the implementation of this cooperation mechanism - for instance, in regard to the surveillance of activities, which it is obligatory to report and in regard to the identification of a shipwreck so as to establish which State has consultation rights.
To facilitate this process the UNESCO 2001 Convention envisages the possibility of establishing a “Scientific and Technical Advisory Body”. When and how this body will be established - and if at all - remains the decision of the assembly of States Parties, which will meet when the Convention enters into in force.
c. The guidelines for the work of underwater archaeologists
An exceedingly important part of the UNESCO 2001 Convention is its Annex. It sets the standards for the work of underwater archaeologists. The regulations stated in the Annex are based on an earlier ICOMOS Charter from the year 1995 and it has gained broad acceptance by archaeologists worldwide.
These regulations set out basic principles for archaeological work, documentation and the planning of the funding of excavations. They are not only acutely helpful for archaeologists, but also for authorities who have to decide whether they should or should not grant permission for a proposal concerning a site.
2. The Convention in the context of international maritime law
a. Relationship to UNCLOS
Despite the above-mentioned content of the 2001 UNESCO Convention being geared to the protection of cultural heritage, there were dissenting voices against the text. A major point was - and still is, - that the UN Convention of the Law of the Sea (UNCLOS) was definitive and hence that no other Convention touching maritime law would be permissible. This is hard to comprehend.
Apart from the fact, that the UNCLOS is basically a treaty which remains inter partes - i.e. between consenting States - alterable, it even seems to anticipate a Convention for the protection of cultural heritage. In this respect Article 303 paragraph 4 states that UNCLOS allows regulations on cultural heritage protection (6).
Because in recent years hitherto unknown life-forms and resources have been discovered on or in the sea bed, its exploitation or its protection has become the subject matter of international negotiations. Hence it has already become clear that UNCLOS may serve as an underlying constitution of the seas, but never as an ultimate bible. There will be ever and anon new areas, which have not been regulated yet, which however need to be regulated.
Furthermore it was argued against the UNESCO Convention 2001 and its cooperation mechanism that Article 303 II UNCLOS would give coastal States a sole limited right (and here lies the stress) to defend their cultural assets up to the outer limit of the Contiguous Zone (i.e. up to 24 nautical miles off the coast) and not more (7). From this item a prohibition of additional protectional endeavours was derived. However such argumentation would mean abusing the defects of phrasing of this Article, which was added to UNCLOS at the last moment, and should not serve to contravene the major purpose of the Article as a whole as laid down in its first paragraph - namely to ensure the protection of archaeological sites.
The fact that a right was expressly provided for coastal States does not mean that they could not defend their cultural resources more distant from the coast together with other sovereign States. This, however, is what is only regulated by the UNESCO-Convention.
Whether coastal States are also allowed to enforce sovereign rights in the outer area of their exclusive economical zone, which would allow them to counteract looting without referring to cooperation and the sovereign rights of cooperating States, remains open in Article 10 II of the UNESCO 2001 Convention (8). Several States rely for this on Article 56 1)(b) (ii) UNCLOS (9), others dissent from this interpretation.
This dissent, however, should be no reason to refrain from becoming party to the 2001 Convention. It does not resolve disputed issues of State sovereignty and respects existing international law. Where a State possesses sovereign rights, it can take action against looters itself, or it can do this in cooperation with other States Parties under the umbrella of the UNEXSCO 2001 Convention (10).
b. The protection of warships
As last item the protection of the remains of warships shall be shortly addressed, which is highly contested to this day.
First it should be noted that the 2001 UNESCO Convention of course protects the remains of warships against looting and destruction if, in accordance with the Convention definition, they are at least 100 years of age and of historical or cultural character.
Nevertheless several great naval powers attempted not only to obtain protection, but to assert a full immunity of wrecks of their respective warships during the negotiations for UNCLOS as well as for the 2001 Convention (11).
Insofar as the UNESCO 2001 Convention refers to exclusive sovereign rights of the country of origin for wrecks of its warships this applies expressly only if they are located in international waters (i.e. If a wreck of a State vessels is found outside territorial waters the Flag State needs to be asked for agreement before interventions are undertaken). For territorial waters a need for consent of the Flag State before interventions on the remains of State vessels is not expressly foreseen for Territorial waters, the Convention stipulates in its Article 7(3) only that the Flag State “should” be informed if such a wreck is found. The Convention however is silent as to exclusive immunity.
The reason behind this is that most coastal States would never consent to a limitation of their sovereign rights in their own territory. Moreover it should be noted that a wreck of a warship, which has already lain 100 years at the bottom of the sea, would hardly hold a State secret and, furthermore, would not even fulfill the UNCLOS definition of a warship (12).
The 2001 Convention in fact concedes more to a country of origin of a sunken warship than had hitherto been laid down in written form, namely that it will be informed of a discovery.
During the negotiations of the 2001 Convention the representative of Portugal declared in this context during the elaboration of the 2001 Convention that it should be the goal of a Convention on the protection of underwater cultural heritage to share heritage and not to monopolize it of to even reclaim this heritage – which it historically and culturally shares with the States on which’s seabed it lies.
Portugal and Spain, two nations with an impressive maritime history, ratified therefore the Convention and agreed that a comprehensive protection of all wrecks through State cooperation is the only way to prevent their destruction.
The hope may be expressed that many more States will follow their example and will comitt to the protection of a cultural heritage that is still victim to treasure hunt and gold fever. One week before this Article was written again the cargo of a wreck was sold on auction in Brussels. It will certainly not be the last submerged archaeological site wich is destroyed for this motive. But we may hope that this kind of trade will in future not any more perceived as „business as usual“.
(1) The author is the UNESCO focal point responsible for the UNESCO Convention for the Protection of the Underwater Cultural Heritage (2001). The views expressed in this article, however, are the author's and do not bind UNESCO.
(2) See the text of the 2001 Convention (in the original languages English, French, Spanish, Chinese, Russian and Arabic) as well as further information at www.unesco.org/culture/en/underwater.
(3) Article 3 of the UNESCO 2001 Convention states on the Relationship between this Convention and the United Nations Convention on the Law of the Sea: “Nothing in this Convention shall prejudice the rights, jurisdiction and duties of States under international law, including the United Nations Convention on the Law of the Sea. This Convention shall be interpreted and applied in the context of and in a manner consistent with international law, including the United Nations Convention on the Law of the Sea.".
Also see article 6 III of the 2001 Convention: "This Convention shall not alter the rights and obligations of States Parties regarding the protection of sunken vessels, arising from other bilateral, regional or other multilateral agreements concluded before its adoption, and, in particular, those that are in conformity with the purposes of this Convention".
(4) As Lyndel Prott states the issue of "ownership" and "property" has in all cases not been regulated by UNESCO legal instruments as this would have been a too highly controversial issue. Especially the difference in property law and political philosophy remain enormous from the US to communally based property systems. Therefore the general rule in drafting UNESCO Conventions has been to specify the degree of protection to be given, but to leave it to the States as to how they manage this in their own legal systems e.g. by State ownership, appropriation, pre-emption, controls on private owners, incentives etc. (the 1972 UNESCO Convention does use the word "properties", this is however a special case.) The case of Juno and Galga, Spanish warships wrecked in US waters, is exemplary in this respect. After these ships were found by treasure-hunters, Spain asserted its property rights in court. Because ownership of States remains active for wrecked warships, the treasure-hunters were denied access to the wrecks and the salvaged objects were given to a US-American museum. In such cases it would have been a too controversial endeavour to regulate property rights through a Convention. Therefore this will remain, as supplied before, within the remit of civil and international law.
(5) See article 10 paragraph 6 and 12 paragraph 6 of the UNESCO 2000 Convention.
(6) "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. "
(7) Article 303 (2) UNCLOS states: "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 [i.e. in the Contiguous Zone (author's note)] without its approval would result in an infringement within its territory or territorial sea of the laws and regulations referred to in that article. "
(8) "A State Party in whose exclusive economic zone or on whose continental shelf underwater cultural heritage is located has the right to prohibit or authorize any activity directed at such heritage to prevent interference with its sovereign rights or jurisdiction as provided for by international law including the United Nations Convention on the Law of the Sea. "
(9) The Convention on the Law of the Sea allows contracting States sovereign rights for "marine scientific research" - whether this applies also to underwater archaeology is disputed.
(10) It should be also noted, that the UNCLOS Secretariat was present during the whole of the negotiation process of the 2001 UNESCO Convention (UNESCO is one of the UN Specialized Agencies)I to ensure the compatibility of both Conventions.
(11) See Articles 32 and 236 UNCLOS, which determine the immunity of functioning warships (however, not of their wrecks).
(12) Article 29 UNCLOS states: "For the purposes of this Convention, "warship" means a ship belonging to the armed forces of a State bearing the external marks distinguishing such ships of its nationality, under the command of an officer duly commissioned by the government of the State and whose name appears in the appropriate service list or its equivalent, and manned by a crew which is under regular armed forces discipline. "
Dr. Hanz Günter Martin
The cultural heritage under water is enormously rich and has a great potential. In recent years it gained increasing attention by the research community and the general public. Looting and destruction, however, are on the increase and threaten to bereave humankind of this heritage. Realising the urgent desideratum to protect this heritage, the UNESCO devised the 2001 Convention on the Protection of the Underwater Cultural Heritage.
In the course of centuries entire sites were engulfed by the seas and thousands of ships wrecked. Today the remains constitute a rich archaeological heritage of greatest cultural importance. Many sites under water have remained untouched for centuries or even millenia. Moreover organic material is prone to be much better preserved than on land due to its anaerobic condition, as oxygen enhances the deteriotation process. This makes these sites unique, because they preserve information and objects of the past, which would have been lost on land.
It is estimated that more than 3 million undiscovered wrecks lie at the bottom of the world's oceans.
Famous ships are inter alia:
- the Armada of Philipp II of Spain;
- the fleet of Kublai Khan;
- the ships of Christoph Columbus;
- the Spanish galleons, which sailed between Spain and America.
The remains of countless ancient structures are under water now. Whilst Atlantis will have to remain a legend, archaeological sites under water of the size of Pompeji have been discovered.
Renowned sites are inter alia:
- The bay of Alexandria, with remains of the lighthouse and Cleopatra's palast;
- Parts of the ancient Carthage;
- Part of Mahabalipuram, world heritage site, India;
- Dwarka, India;
- Port Royal on Jamaica, destructed in 1692 in an earthquake.
The UNESCO Convention for the Protection of the Underwater Cultural Heritage could be partly called a success already, because the standards devised in the annex for underwater archaeological excavations have been adopted by archaeologists almost everywhere in voluntary self-committment.
However only by archaeologists, not treasure-hunters. The underwater cultural heritage is thence still profoundly threatened and this threat is increased by the development of underwater technology, which eases access to underwater sites.
Action is needed!
The UNESCO convention was adopted in Paris in 2001 and takes its course through the instances worldwide. Until now 15 states have ratified the convention, i.e. Bulgaria, Ecuador, Cambodia, Croatia, Lebanon, Libya, Lithuania, Mexico, Nigeria, Panama, Paraguay, Portugal, Spain, St. Lucia and the Ukraine.
Once it will be ratified by 20 states, the convention will come into force.
From the perspective of archaeologists the UNESCO Convention for the Protection of the Underwater Cultural Heritage entails considerable advantages in two issues:
1. It ensures that there will be no private and commercial exploitation of underwater sites. This would diminish the interest of treasure-hunters, because grey areas would vanish worldwide in which they could operate.
2. It regulates how concerned states (neighbouring, owner and flag states) could cooperate for the benefit of the protection of the underwater cultural heritage. Moreover it does not regulate proprietary rights of underwater finds and does therefore not interfere with the Law of the Seas.
Germany should ratify the UNESCO Convention for the Protection of Underwater Cultural Heritage for two reasons as soon as possible:
1. The German North and Baltic Sea coasts are basically well protected through federal law, but inland seas like the Mediterranean and the Black Sea -- important for the shared European heritage -- have areas which lie beyond the 12 nautical mile zone of littoral states and therefore remain unprotected.
The oceans with their gigantic reservoirs of underwater sites are unprotected. Here the international community of states has to act and Germany must not be absent. The world cultural heritage is at stake.
2. Through article 11 of the convention captains of flag states are obliged to report any underwater archaeological activities. This means in its ultimate consequence that no ship under German flag may be involved in illegal excavations on the oceans. This is an effective instrument in the strife against treasure-hunters. It is certainly appropriate, because one cannot ignore the fact that there are several enterprises and privates, who take part in the looting of the oceans on board of German ships.
We plead to disseminate our common concern!