The hunt is on for the Cambridge, a British warship that sank during a storm 300 years ago in the Western Mediterranean. Odyssey Marine Explorations, a salvage company based in Tampa, Florida, is using a remotely operated vehicle to sweep the seas with side scan sonar surveys at depths ranging from 1,000 to 3,000 feet and is analysing data and any anomalies that might indicate the presence of a wreck.
If the Cambridge is found, Odyssey will carry out an archaeological investigation of the ship in conjunction with the Royal Naval Museum. Although Britain cannot issue a salvage contract until the Cambridge is discovered, under the proposed agreement, Britain will receive most of the recovered cultural artefacts, while Odyssey will keep the majority of the trade goods on board, such as coins. Britain will also be offered the right of first refusal to buy the entire collection.
This type of public-private partnership for the recovery of shipwrecks is not uncommon. Governments are increasingly collaborating with well funded salvage companies to help pay for expensive deep ocean search and recovery archaeology which can cost up to $50,000 a day depending on the water depth and the type of equipment used.
Last year, Saga Horizons, a Malaysian company, recovered a hoard of 15th-century Vietnamese ceramics from a wreck off the coast of Hoi An in the South China sea. The Vietnamese government kept the items of greatest significance for the National History Museum in Hanoi and a further 10% of the objects were distributed to museums throughout Vietnam. The remaining 150,000 objects were given to Saga Horizions who offered them for sale on eBay.
In another public-private partnership, Fidel Castro has been selling foreign salvage companies the rights to search in Cuban waters for Spanish galleons and the gold, silver, and gems they may contain. Under the terms of this agreement, Cuba will retain half the earnings from discovered material while the salvage companies will be awarded the other half. To date salvors from Canada, France, South Africa, and Russia have signed joint-venture agreements with the Cuban government.
Although many salvage companies work in conjunction with governments, others, who operate in international waters, forge no such partnerships. There is virtually no law safeguarding submerged sites in international waters, with the general exception of military wrecks, so salvors can operate with almost no interference.
The proliferation of these companies and the rapid development of the technology that enables them to undertake deep sea exploration has increasingly concerned archaeologists who warn that, unless action is taken, these companies will continue to recover artefacts with little or no regard for scientific excavation, research, publication, and public access to information.
In response, the United Nations’ cultural arm, Unesco, has now completed a draft Convention on the Protection of the Underwater Cultural Heritage. The document represents the first inter-governmental effort to provide a comprehensive legal framework for the protection of underwater sites, including shipwrecks, in both territorial and international waters. It sets out the rights and responsibilities of governments in exploring, protecting, and managing underwater cultural resources.
The Unesco Convention defines underwater cultural heritage as “all traces of human existence having a cultural, historical, or archaeological character which have been partially or totally under water, periodically or continuously, for at least 100 years.” In its “Objectives and General Principles” the convention calls upon States to “preserve underwater cultural heritage for the benefit of humanity,” and it points to “the preservation in situ of underwater cultural heritage” as the “first option before allowing or engaging in any activities directed at this heritage.”
Despite this cautionary stance, “the Unesco Convention recognises the importance of taking account of both public and private interests,” says James Nafziger, Professor of Law at Willamette University. As Rapporteur for the International Law Association’s 1994 draft convention, the document on which the Unesco Convention is based, Professor Nafziger was an observer at the Unesco meetings of governmental experts held to negotiate the terms of the convention.
Speaking to The Art Newspaper, Professor Nafziger says that, “the convention targets fly-by-night salvors who operate unethically without competent archaeological supervision and who are only interested in making a quick buck.” He points out that although the convention states that the “underwater cultural heritage shall not be commercially exploited”, “this stipulation is qualified in the document’s annex where the rules for activities directed at the cultural heritage are set out.”
These state that, provided the work is carried out in conformity with the rules of the convention, it is up to the discretion of individual governments to authorise or prevent private salvage activity.
The considerable concessions that have been made to accommodate private salvage interests and the rights of governments to co-operate with private companies if they choose have made for a convention that, in this respect, is realistic and workable. The problems lie elsewhere.
One of the most contentious provisions in the convention is the proposal to create an extended cultural zone for coastal States which gives these States the right to “prohibit or authorise any activity directed at [the cultural heritage]” by vessels, national or foreign, up to 200 miles from their coasts.
Speaking to The Art Newspaper, sources who attended the fourth meeting of governmental experts held in July to discuss the convention, said that this potential enlarged cultural heritage zone is a problem. They say that this was taken by some delegations as representing an extension of jurisdiction that is potentially in conflict with the stipulations of the United Nations Convention on the Law of the Sea (UNCLoS).
This perceived conflict will make it extremely difficult for major maritime powers such as the US, Russia, and some Western European countries, who have traditionally argued in favour of maximum freedom and minimal jurisdiction in international waters, to ratify the convention.
Let us imagine that the convention were ratified by two countries: the US and Cuba. Let us then imagine that a US vessel were suspected of engaging in unauthorised exploration of the underwater cultural heritage within 200 miles of the Cuban coast. Under the terms of the convention, the US and Cuba would share the responsibility of ensuring that the US vessel was conducting the underwater work in compliance with the convention.
In such a situation, the convention stipulates that Cuba should then consult with all other countries that might have an interest in the submerged site, for example Spain, if the site in question were a sunken Spanish galleon, and implement measures of protection agreed with all the countries with a declared interest in the site.
The fear is that this provision could lead to a host of unjustified claims if States use the convention as an excuse to interfere with the rights of foreign vessels.
The Law of the Sea
The third United Nations Convention on the Law of the Sea, negotiated from 1974 to 1982, came into force in 1994. There are currently 136 parties to this convention.
UNCLoS provides a framework for the allocation of jurisdiction, rights, and duties among States that carefully balances the interests of countries in controlling activities off their own coasts with the interests of all countries in protecting the freedom to use ocean spaces.
UNCLoS sets out various maritime zones and establishes the balance of interests for each of these areas. These include: territorial waters which can extend to a maximum of 12 miles from the coast and in which a State exercises full sovereignty; contiguous zones which can extend to a maximum of 24 miles from a State’s coast and in which a State has the right to exercise the limited control necessary to prevent or punish infringement of its customs, fiscal, immigration, and sanitary laws, but in which a State does not exercise full sovereignty and cannot impede the freedom of navigation of foreign vessels. Finally there is the Exclusive Economic Zone (EEZ) which may extend to a maximum distance of 200 miles from a State’s coast and in which a State has the right to exploit natural resources such as offshore oil and gas and fisheries, but in which all States enjoy freedom of navigation, and other rights such as the right to lay and maintain submarine cables and pipelines.
The cultural heritage
UNCLoS imposes a general duty on States to protect objects of an archaeological and historical nature found at sea and to cooperate for this purpose. However, this law does not specify how the protection of the underwater cultural heritage is to be enforced and it only allows States the right to protect this heritage in their contiguous zone and not in their EEZ.
The Unesco convention extends a State’s responsibility to the edge of the EEZ and stipulates the precise procedures for protecting underwater sites.
According to Professor Nafziger, “one reason the Unesco convention took so long to negotiate is because every effort was made to ensure that nothing in the document should conflict with UNCLoS.” The process of hammering out the convention has taken six years and several meetings of governmental experts. At these discussions, two camps emerged, which can broadly be described as the Coastal States (countries with coastlines) and the Maritime States (countries with a strong maritime presence), each promoting their own interests. As it stands, the convention is a compromise between these two camps.
Despite this, it is doubtful that the US or Russia, among others, will be willing to ratify a convention that could be interpreted as allowing other States increased authority over their vessels. If the US does not ratify the convention, American salvage companies will continue to operate unchecked in international waters other than under US law, and because much of the industry is based in North America, the effectiveness of the Unesco Convention will be greatly reduced.
A vote held among the representatives of Unesco member countries at the conclusion of the fourth meeting of governmental experts in July had 49 countries voting in favour of the convention, four against (Norway, Russia, Turkey, Venezuela), and eight abstaining (Britain, France, Germany, The Netherlands, Sweden, Greece, Hungary, Chile). Because the US is not a member of Unesco and attended the meetings only in the capacity of observer, the American delegation was not entitled to vote, although the US will be invited to ratify the convention if it is adopted.
When asked if he expects the US to ratify the convention, Professor Nafziger points to the current reluctance of the US to enter into any multi-lateral agreements: “I won’t hold my breath, but I am hopeful,” he says.
The draft convention will be presented at Unesco’s General Conference next month and, if approved by a two thirds majority, will be sent to Member States for ratification. For countries that ratify the convention, it will go into force three months later.