Unesco Gets Its Feet Wet

Minerva: Inernational Review of Ancient Art and Archaeology - January, 2002
by Greg Stemm

An overview of the UNESCO Convention for the Protection of Underwater Cultural Heritage.

'It is the nature of men having escaped one extreme, which by force they were constrained long to endure, to run, headlong into the other extreme, forgetting that virtue doth always consist in the mean'.

- Sir Walter Raleigh.

On November 4, 2001 UNESCO issued the following statement by e-mail: 'The UNESCO Convention on the Protection of the Underwater Cultural Heritage was adopted today by the Plenary session of the 31st General Conference by 87 affirmative votes, thus becoming UNESCO'S fourth heritage Convention. Four States voted against and 15 abstained from voting. A number of States gave explanations of their vote, and an Observer, the United States, gave a statement of its views'.

Thus concluded four years of complex negotiations that purported to develop a regime that would protect the world's underwater cultural resources. Whether the Convention for the Protection of Underwater Heritage (CPUCH) will achieve that goal is yet to be seen, but the adoption of the Convention by many countries will have an effect on the way we deal with underwater archaeology throughout the world. The idea for this Convention materialised in the International Law Association in 1994. The first draft was prepared by a group of international lawyers that had a real interest in preventing the rape and pillage of the world's underwater cultural heritage. The draft Convention was taken on by UNESCO in 1997, and there have been five expert meetings in Paris which have included the participation of hundreds of archaeologists, lawyers, military representatives, cultural resource managers, and politicians.

At the last meeting in Paris in July 2001 there was a real sense of urgency. The two major issues that have haunted the convention from the beginning continued to dominate the negotiations. The first and most complex of these issues was the jurisdictional issue. Simply put, who would have control of underwater cultural heritage (henceforth UCH) in the various maritime zones defined in the Law of the Sea Convention? The second, smaller in scope, but no less contentious, was the special treatment of warships.

At first, it seemed that progress was being made on these two issues, but the intransigence of some of the parties made compromise all but impossible. To his credit, the Chairman, Carsten Lund, tried everything to bring these two groups together - debates in working groups, drafting groups, back to the plenary session, back to working groups, and back to drafting groups again. After all this effort, there was really little movement on either side. In the end, some of the most hotly contested language had to literally be forced through, which typically resulted in some very unhappy delegates.

One of the most interesting phenomenon I observed was the tendency to resort to 'constructive ambiguity' when we encountered issues which proved too contentious for compromise. I was amazed that delegates actually found that they could 'fix' some problems by simply inserting language that was sufficiently confusing to allow either side to interpret it the way they saw fit. While this bizarre strategy often moved us past controversial issues, the net result was language in some articles which will prove difficult, if not impossible, to administer in the real world.

During the course of the two week meeting in July 2001, we often encountered drafting issues which could not be resolved, so these were shovelled off to the side, with the idea that we would address them again at the 'final reading'. At that time we could confront these issues with advice from the drafting committee, who would theoretically have examined them during the course of the week in order to make recommendations during the last reading of the document. In fact, this final reading never happened.

At the end of the last day, late in the evening, the Chairman told the meeting that we had run out of time and had two choices; we could either present the Draft Convention to UNESCO in its present form (that is, unread, and unedited by the meeting of experts), or we would not have a convention. Despite the protests of the US, the United Kingdom, France, Russia, Norway, and a number of other countries that comprise the vast majority of the world's oceanic technological resources, the G-77 carried the day in a vote that dictated that the Convention should be approved and sent to the UNESCO General Conference in October 2001 for approval. This decision was made without knowledge of the final language of the Convention.

During September and October, numerous attempts were initiated to broker compromise that could bring the US and the majority of European countries into the Convention. However, these negotiations went nowhere and the draft Convention which was sent to UNESCO contained many issues which will likely prevent countries like the United States, the United Kingdom, Russia, and France from becoming signatories.

Since the Convention will only apply to signatories, leaving the interests of these four countries out will mean that the Convention will not apply to the nations that possess the vast majority of technological access to the world's oceans. The Convention will undoubtedly be adopted by many G-77 countries, so it is important to understand how the Convention might apply when dealing with UCH under this regime.

An Overview of the Issues
The Convention is broken into two different portions. The first is composed of the Articles of the Convention itself, which define the regime, what it protects, and the jurisdictional issues that relate to that regime. The second portion contains the Annex - the Rules that govern how UCH should be treated once the regime has been defined. An overview of the issues that will require careful consideration to understand the possible long term effects of the Convention are discussed below.

1. The Definition of UCH
The first issue is the definition of UCH contained in Article 1. '"Underwater cultural heritage" means all traces of human existence having a cultural, historical or archaeological character which have been partially or totally underwater, periodically or continuously, for at least 100 years'

This definition is so broad as to defy logic, and does not include any criterion for archaeological or historic significance. Perhaps every hundred-year-old nail or antique has a historical character. However, the idea that the sweeping rules of the CPUCH Rules be applied to every object is difficult to imagine, and will be difficult to implement.

One of the prevailing themes in the negotiations was to afford UCH the same protection underwater as on land, yet it would be difficult to imagine any regime that would afford special protection of the type envisioned in the Rules for every trace of human existence on land that is over 100 years of age. Taken to its most illogical conclusion, one could imagine that a collection of antique fishing lures, having been underwater periodically within the past 100 years, would be subject to the Convention. There was considerable debate about including a requirement for archaeological significance, but it met with strict resistance and went nowhere.

2. Regulation of Activities 'Incidentally Affecting' UCH
Article 5 reads: 'Each State Party shall use the best practicable means at its disposal to prevent or mitigate any adverse effects that might arise from activities under its jurisdiction incidentally affecting underwater cultural heritage.'

When read with the definition provision of 1(7), this imposes an awesomely broad duty on States to use 'best practicable means' to prevent any activity that might incidentally affect UCH. This provision could give license to a vast regulatory scheme for offshore activities as varied as pipeline/cable laying, fishing, hydrocarbon drilling, dredging, and bioprospecting, not to mention simple harbour repair or improvement activities. A substantial concern could be raised that Article 5 will give license to coastal States to restrict legitimate activities in their exclusive economic zones (EEZs), not now contemplated under the Law of the Sea.

3. Inconsistency with the 1982 UN Convention on the Law of the Sea
It is the opinion of many international legal scholars that the UNESCO Convention is inconsistent with the Law of the Sea Convention. This is particularly true of Articles 9-12 on coastal State jurisdiction and activities in the Area, but also in relation to provisions that appear contrary to UNCLOS Article 303s preservation of the law of salvage and maritime law. I say 'appear' because this is one of those areas where the article is open to interpretation.

4. Confusing Jurisdictional Competence
From a strictly practical perspective, the most problematic aspect of the Convention is that it is deliberately obfuscatory as to which State would have primary control over a particular operation or activity. The 'constructive ambiguity' so frequently invoked during the negotiations served to create a nightmarish regime for entities that will be required to work under these deliberately confusing jurisdictional puzzles. It is clear that the only 'constructive' aspect of this ambiguity was that it allowed the Convention to be pushed through! It will certainly not be constructive in application, nor interpretation, for those that will have to deal with the results of these negotiations.

One example of the challenges of this regime is the requirement for reporting of finds of UCH by the 'national' to the flag state. This raises questions of which person, on any given ship, has a responsibility to report finds of UCH, and to whom? On many research or commercial vessels it is not uncommon to find the citizens of a dozen different countries. This could easily be read as requiring each person of a different nationality to report finds to his own state. Every engineer, deck hand, chef or steward may find himself obligated to report finds to his state. What if he is the National of a signatory to the Convention on a vessel that flies the flag of a non-signatory state? It also raises the question of confidentiality agreements with the crews of vessels, which are not unusual. Would a National be required to violate the terms of their employment in making such a report?

Another complication will be the Coordinating/Consulting State regime created in Article 10. Under this regime all countries that are signatories to the Convention are notified whenever UCH is located. At that point, they have the right to register their interest as a 'consulting state' for that UCH. The only requirement for becoming a consulting state is that they have a 'verifiable link' with the UCH, which could theoretically be as tenuous as geographic proximity (all eastern Mediterranean countries could argue a verifiable link with any shipwreck found in the eastern Mediterranean) or cargo (Spanish coins on a shipwreck could provide the link).

The co-ordinating state (typically the coastal state) will be responsible for management of the UCH, but can only implement protective measures once they are agreed by the consulting states (except in cases of emergencies). Under this regime, one consulting state that disagrees with activities to be carried out could prevent archaeological excavation of a site. One shudders to think of the complexities associated with requiring a committee of nations' representatives to agree on the treatment of an ancient shipwreck in politically sensitive areas such as the Mediterranean Sea.

5. Cumbersome Institutional Arrangements
Recognising that it may only be a framework for further rounds of regulation, many provisions of the UCH Convention hand over substantial powers to unaccountable international entities. Aside from the reporting requirements of Articles 9(3) and 11(2), which will be time-consuming for States Parties, institutional, academic, and private sector and commercial operators, both UNESCO and the International Seabed Authority will be granted substantial information-sharing responsibilities under Article 19. Clearly, the Meetings of State Parties and Scientific and Technical Advisory Board (STAB) will play a major role in the refinement of the Annex Rules, and the potential role of this mechanism is not clearly understood.

6. Warship Jurisdiction
The regime for consultation and jurisdiction of UCH that will apply to 'state vessels' is filled with sufficient 'constructive ambiguity' so as to make it virtually impossible for any archaeological institution, commercial offshore company, or private sector exploration firm to know for sure who controls the shipwreck of a warship. The assertion of flag state rights over warships will undoubtedly conflict with assertion of rights by coastal states that become party to CPUCH. This presents an ominous situation where the best interests of the UCH are ignored in a jurisdictional deadlock between the coastal and flag state.

This will have a profound effect on the thousands of shipwreck sites, especially those British, Spanish, Portuguese, Dutch, and French Colonial period warships that are scattered throughout the oceans of the world. The Convention creates a regime in which the coastal state is only urged to notify the flag state if it has found a shipwreck of one of its warships. There is no obligation to report such a find. The US, Spain, France, and UK (among others) do not give up the rights to their warships, no matter where they lie. This will set up some very interesting conflicts in coming years.

The Annex Rules
The Annex Rules are the set of regulations that will govern activities directed at Underwater Cultural Heritage. They evolved from the ICOMOS (International Council on Monuments and Sites) Charter for the Protection of Underwater Cultural Heritage, and were added to the original ILA draft of the Convention as protocols for dealing with UCH.

While the ICOMOS Charter provided a reasonable group of standards and Code of Ethics, it was never envisioned as law, and therefore was difficult to convert into legally binding principles. There is a decided bias against including private sector in the management of UCH in the ICOMOS Charter, and not surprisingly, this carried through to the Rules of the Convention. This was sold as a necessity to prevent treasure hunters and sport divers from indiscriminately looting underwater sites, but went much further. Some of the more interesting Rules, and my assessment of each follows below.

Rule 2:
'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, bought or bartered as commercial goods.'

This rule was hotly contested, and saw stiff resistance from both the United States and the United Kingdom, who both consider the private sector to be a legitimate and bona fide constituency of the shipwreck resource. After considerable debate the following two paragraphs were added to this Rule:

'This Rule cannot be interpreted as preventing:

A) the provision of professional archaeological services or necessary services incidental thereto whose nature and purpose are in full conformity with this Convention and are subject to the authorisation of the competent authorities;

B) the deposition of underwater cultural heritage, recovered in the course of a research project in conformity with this Convention, provided such deposition does not prejudice the scientific or cultural interest or integrity of the recovered material or result in its irretrievable dispersal; is in accordance with the provisions of Rules 33 and 34; and is subject to the authorisation of the competent authorities.'

On the one hand the first paragraph is clear that UCH should not be traded as 'commercial goods', but that is not defined anywhere. The sale or trade of an antiquity as a cultural artifact, as opposed to 'commercial goods', can be interpreted as requiring that the piece may be sold or traded, but only with appropriate documentation showing that it was acquired in a bona fide transaction or after a proper archaeological excavation.

This conditional prohibition is also subject to paragraphs A and B. Both of these are quite clear in their intent to modify the first paragraph of the rule. In Paragraph A, it states that the prohibitions in the Rule cannot be interpreted as preventing the 'provision of professional archaeological services or necessary services thereto' - as long as they are in conformity with the Convention.

Taken together, this would appear to mean that artifacts can be traded, bought, or bartered if a prohibition would prevent a legitimate archaeological excavation from taking place, or prevent provision of necessary services. In some countries, and on some sites (notably expensive deep ocean sites), there are projects that can only be funded if the sale or trade of the cargoes of the shipwrecks are allowed to take place. However, the Convention is quite clear that the recovery would have to take place in compliance with the rest of the Convention and the Rules.

In Paragraph B there is a second exception to the prohibition on sale and trade, and it is a provision for the 'deposition' of UCH, provided that this does not take place in a manner which jeopardizes the 'scientific or cultural interest or integrity of the recovered material or result in its irretrievable dispersal'. (It must also be in accordance with Rules 33 and 34, but we will address those issues later.)

During the negotiations, this provision for 'deposition' was hotly contested as it was seen to allow the distribution and sale of artifacts, especially to museums and institutions, but also to collectors. One delegate even went so far as to proclaim that deposition 'would certainly include depositing artifacts on a collector's mantel'.

This paragraph is also careful to provide that artifacts which may be subject to 'deposition' do not end up irretrievably dispersed. In other words, artifacts may be traded, or even owned privately, but must be available for study. This latter point is also addressed in Rule 33 in the requirement to keep the collection together, which is qualified by 'as far as possible'. This is an important condition that will have to be addressed in order to continue the sale or trade of shipwreck artifacts. Both these requirements can be met by development of an artifact title and documentation database. This would provide a tracking mechanism that would allow archaeologists and scientists to locate artifacts dispersed through different museums or private hands for further study.

I believe that the totality of the wording in Rule 2 was carefully drafted to allow countries to provide for sale or trade of artifacts to either satisfy their own internal laws, or where needed, for funding archaeological projects, especially when artifacts have relatively little archaeological significance. In my opinion, this rule will not prevent private sector shipwreck exploration, but will require stringently supervised planning and techniques for any operations involving shipwrecks of a hundred years of age or older.

Rule 9:
'Prior to any activity directed at underwater cultural heritage, a project design for the activity shall be developed and submitted to the competent authorities for authorisation and appropriate peer review.'

While I think this is a good provision in theory, it will be interesting to see how the archaeological community will deal with the requirement for every research design to receive peer review. Some well-known and experienced underwater archaeologists worry that to some extent development of a proper research design can only take place during a project. Before an excavation takes place, you can only guess at the conditions of a site.

Rule 17
'Except in cases of emergency to protect underwater cultural heritage, an adequate funding base shall be assured in advance of any activity, sufficient to complete all stages of the project design, including conservation, documentation and curation of recovered artefacts, and report preparation and dissemination.'

Rule 18
'The project design shall exhibit demonstrated ability, such as securing a bond, to fund the project through to completion.'

These two rules are interesting because I believe that they will serve to cause extensive problems for the academic and institutional archaeological community. Funding is always a problem in the non-profit and government arena. Creating a regime that requires assurance of all funding in advance of a project will make it difficult, if not impossible, to get projects off the ground. While not obvious, a case can be made that the requirement of funding to complete curation of all artifacts means funding for not only the conservation and documentation, but presumably storage and maintenance in perpetuity. In an informal survey of underwater archaeologists, there appears to be a general feeling that very few, if any, institutions can meet this rule.

This might produce the unintended, but welcome, consequence of creating an increased reliance on the private sector for funds. Unlike public institutions, responsible private businesses must typically identify funds prior to beginning a project. Demonstrating financial responsibility and securing bonds are standard operating procedure for professional underwater contracting firms. This is especially important in the case of deep water projects, where the budgets run into millions of dollars. Few institutions will be able to provide the financial means to undertake these expeditions without the private sector's assistance.

Rule 33:
'The project archives, including any underwater cultural heritage removed and a copy of all supporting documentation shall, as far as possible, be kept together and intact as a collection in a manner that is available for professional and public access as well as for the curation of the archives. This should be done as rapidly as possible and in any case not later than 10 years from the completion of the project, in so far as may be compatible with conservation of the underwater cultural heritage.'

There are two parts to this rule. The first, which suggests that a collection should be kept intact 'as far as possible', is the codification of a reasonable principle. Ideally, I suppose that an argument could be made that all UCH would be kept together in a collection forever just in case someone wanted to study it. Unfortunately, the potential burden this places on the institutional and museum community is staggering. It has been estimated that there are at least 3,000,000 shipwrecks throughout the world that would be considered UCH under this Convention. That number is considered a baseline, and the actual figure could be much higher.

The challenge is the Convention's failure to acknowledge any significant criteria for keeping these collections together. Museums and institutions are already bursting at the seams. Archaeological institutions are going to have to find new places and creative methods for storing collections and archives in perpetuity, especially in light of Rule 17, which requires funding to be available for the ultimate conservation of the project archive - supposedly in perpetuity - before beginning a project.

As previously mentioned, the ideal solution may very well be to maintain collections in the hands of private collectors and spread throughout different museums, as well as in public and academic institutions. The key will be the development of a detailed documentation and tracking mechanism so that archaeologists and historians may study the pieces in their different locations. It may not be the perfect solution, but it is certainly more convenient to study UCH that way than beneath a layer of sediment in the deep ocean.

While this may sound difficult to accomplish, consider that the study of the art of the great masters has not suffered through private ownership. Rembrandts, Renoirs, or Vermeers are often in private hands, and are cared for with attention that would be difficult to fund entirely through the public moneys. Great art and antiquities are made available for study because the collectors are subject to the most dependable motivation - enlightened self-interest and love of the art itself. The objects are made more valuable and more interesting through study, and there is no reason to believe that the same would not hold true for archaeologically significant UCH in private hands.

The second half of this Rule suggests that the project archive be made available in not less than ten years. Perhaps this will have the effect of smoking data off dusty institutional shelves that tend to lie undisturbed for years after the fieldwork is completed.

Rule 34:
'The project archives shall be managed according to international professional standards, and subject to the authorisation of the competent authorities.'

Project archives include everything from the project documentation to artifacts, so the ultimate disposition of collections will hinge on this article. After significant debate, this rule was left open to the international professional standards chosen by each state - there are no specific standards referenced. This will open the door for reasonable and practical standards to be developed by responsible organizations and governments. To some extent the development of these standards can be used to bring some practical and reasonable order to some of the more perplexing contradictions in the Convention.

The issues addressed here are some of the most problematic and interesting. Taken together, they provide a potentially confusing and difficult regime that may serve to hinder rather than promote the ultimate protection of UCH. These difficulties will likely play havoc with archaeological institutions every bit as much as they will with the private sector. They will have an effect on any attempt to properly manage UCH, without regard to the intent or legitimacy of the constituency.

The net result? Countries that wish to allow and promote legitimate private sector access to shipwrecks will still be able to do so. Countries that want to prevent private sector access can do so now anyway, so this will not really change things in those countries. Ironically, the group that will be most profoundly affected by this Convention is the archaeological community. The Rules that govern access to shipwrecks are much more stringent than most academic or non-profit organizations are used to. Fiscally responsible private sector archaeological contractors will, in my opinion, be better able to adapt to the rigorous financial and accountability requirements of the Convention.

We have entered a new age; we have been provided with the technological tools to find and explore every trace of mankind on the ocean's bottom. It is time to take a long careful look at developing a regime that helps to preserve the knowledge we can glean from these priceless historical treasures. In our zeal to protect our underwater cultural heritage, we do need to be careful not to protect it from the very people that bring the stories and knowledge to light.

Whether the UNESCO convention serves our heritage well, or is overly protective, is yet to be seen. As with all laws of man, the Convention's use or abuse will rely entirely on the good faith and wisdom of those that employ it as a management tool. We can only hope that it can be applied with less partisanship and more cooperation than was found in the process that birthed it.

Note: The opinions set forth in this article are mine alone, and do not reflect the views of the United States' delegation to the UNESCO expert meetings, nor this publication. Anyone wishing to view the entire Convention can find it under 'Links'. Comments via e-mail are welcomed to the author at: email Greg Stemm.

©2002 Greg Stemm

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