Paper On Underwater Cultural Heritage and Investment Law

Valentina Sara Vadi, a Ph.D candidate at the European University Institute has an article in the recent edition of the Vanderbilt Journal of Transnational Law, Investing in Culture:  Underwater Cultural Heritage and International Investment Law.  Here is the abstract:

Underwater cultural heritage (UCH), which includes evidence of past cultures preserved in shipwrecks, enables the relevant epistemic communities to open a window to the unknown past and enrich their understanding of history. Recent technologies have allowed the recovery of more and more shipwrecks by private actors who often retrieve materials from shipwrecks to sell them. Not all salvors conduct proper scientific inquiry, conserve artifacts, and publish the results of the research; more often, much of the salvaged material is sold and its cultural capital dispersed. Because states rarely have adequate funds to recover ancient shipwrecks and manage this material, however, commercial actors seem to be necessary components of every regulatory framework governing UCH.  In this context, this Article aims to reconcile private interests with the public interest in cultural heritage protection. Such reconciliation requires that international law be reinterpreted and reshaped in order to better protect and preserve UCH and that preservation of cultural heritage be recognized as a key component of economic, social, and cultural development. 
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"We actually invited the Spanish government to send Archaeologists along."

So said Greg Stemm on the Today show last week discussing the ongoing dispute between Odyssey Marine and Spain. The interview was primarily an excercise in corporate self-promotion for the upcoming special on the sister network at 10 p.m. (ET) on Thursday, April 2, on the Discovery Channel’s “Treasure Quest.” Nonetheless there were some interesting comments made, though there was very little attention paid to archaeology or the importance of preservation of the site and the remains of the vessel.

The odd thing about this dispute and the Today segment in particular are the insistence on painting the controversy in terms of pirates and buried treasure and other romantic ideas. The reality of underwater heritage is far mor nuanced and important.

A few excerpts:

“The ship is the history and national patrimony of Spain, not a site that may be covertly stripped of valuables to sell to collectors. Odyssey was well aware that it is off limits,” said Spain’s American attorney in the case, James Goold.

Odyssey, a publicly held company that is a leader in deep-sea archaeology and treasure recovery, found the vast trove on a 2007 expedition in what it says are international waters off Portugal and the Straits of Gibraltar. The coins were spread over an area the size of several football fields at the bottom of the ocean.

After filling a chartered Boeing 757 with the coins and shipping them to Florida, Odyssey returned to the area to further investigate the site. There they were boarded by a Spanish warship, and the ship and crew were held for several days in a Spanish port.

Stemm concedes that the treasure may have been that carried by the Mercedes, but said that the identity of the vessel has not been established. One difficulty in doing that is that the Mercedes was hit in its powder magazine during the battle and blew up, leaving little actual wreckage at the bottom of the ocean.
Even if it was the Mercedes, Stemm said, that still does not automatically mean that Spain has sole claim to the treasure. Odyssey has argued in court that the Mercedes was carrying the treasure under contract with the merchants who owned it, and as such was acting as a merchant ship and not a warship.

“The Mercedes, if it was the Mercedes, was carrying a merchant cargo,” Stemm said. “While governments can take a sovereign immune warship and say that nobody can salvage it, they can’t say that you can’t salvage goods on behalf of merchants. In fact, we have the descendants of a lot of the merchants that had goods aboard the Mercedes that have come into court and said, ‘We think Odyssey should salvage these goods for us.’ ”

“And remember, there is not even a shipwreck there,” Stemm added. “This is like several football fields of just coins, scattered out over the bottom.”
Stemm says that the original expedition was to an area where his company believed a number of ships had sunk over the years. He said Odyssey notified the Spanish government of its intentions to search the area.

“When we went out to look in this general area, we thought there might be some Spanish shipwrecks,” he told Curry. “We actually invited the Spanish government to send archaeologists along. They just never got back to us.”

Goold has told other news outlets that Spain did respond to the invitation, telling Stemm, “Sunken ships are cultural heritage. Spain does not do commercial deals. It’s national patrimony.”

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Looting Underwater Sites

Three British divers have plead guilty to looting treasures from a wreck off the coast of Spain:

Peter Devlin, Malcolm Cubin and Steve Russ, all commercial salvagers from Cornwall, were arrested in June 2002 on suspicion of stealing gold and diamonds from a sunken ship off the coast of Galicia, in northwestern Spain.

The three faced prison sentences of up to six years each and heavy fines for theft and destruction of Spain’s cultural heritage. But at a court in Santiago de Compostella yesterday, they pleaded guilty in return for suspended sentences and a fine of €1,000 plus €2,500 costs each.

“We are now convicted criminals in Spain but relieved that after seven years the ordeal is finally over and we won’t have to go to prison,” Mr Cubin (38) a father of four from Truro, said. “We’re disappointed because it’s not what we wanted at all and still maintain we did nothing wrong, but there was nothing else we could do.”

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UNESCO Wants HMS Victory Preserved

Yesterday UNESCO released a statement concerning the announced discovery of the wreck of the HMS Victory by Odyssey Marine:

“I am delighted that such an exceptional example of underwater heritage has been located. The cultural and scientific value of this artefact is considerable,” declared Koïchiro Matsuura, Director-General of UNESCO. “In the spirit of the Convention adopted by UNESCO in 2001, I trust that all parties concerned will take the necessary measures to ensure this important vestige of British naval history is safeguarded and given appropriate attention, not used for commercial gain.”

The statement stands in stark contrast to this week’s earlier interview by the company’s own Greg Stemm.  UNESCO and the relevant Underwater Heritage Convention both strongly disapprove of the use of underwater sites for commercial gain.  Few of the World’s major nations have signed on to this proposition.  The UK Government would seem to believe that scientific study can be accomplished with commercial exploitation, or at least that the commercial value may outweigh a more thorough study. 

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HMS Victory Found

Odyssey Marine has announced today in a news conference in London the apparent discovery of the HMS Victory, which sank in the English Channel in 1744.  The wreck was discovered in May 2008.  The company has recovered two of the vessel’s one-hundred brass cannons, pictured here. The wreck is rumored to contain more than a billion dollars in gold

 Note that Odyssey won’t have the rights to this gold, unlike the “Black Swan” wreck, this vessel was clearly a British navy man-of-war, and as such any salvage will be property of the crown.  Odyssey is now negotiating with the UK Government.  A far different relationships than with the Spanish, who have been strongly critical of the company, including bringing suit in federal court in Tampa Florida over the “Black Swan“. 

From the Guardian:

The Ministry of Defence has given the company permission to go back down to the wreck to try to find the treasure.

The British Government will legally own any gold that is recovered, but Greg Stemm, chief executive officer of Odyssey Marine Exploration, said he was in negotiations and would expect to be rewarded for the find.

Mr Stemm said: “The money is not as important as the cultural and historical significance of the discovery. It is a monumental event, not only for Odyssey but for the world.

“It is probably the most significant shipwreck find to date. HMS Victory was the mightiest vessel of the 18th century and the eclectic mix of guns we found on the site will prove essential in further refining our understanding of naval weaponry used during the era.”

Stemm certainly appears to be playing up the heritage and cultural significance angle.  Again the question worth asking is, will Odyssey be undertaking serious archaeological study?  Will the Government insist upon such an examination?  It’s worth noting as well that Odyssey is traded on Nasdaq.  Might its stock increase today?  Should we be treating the discovery of underwater heritage in this way?

Loss of HMS ‘Victory’, 4 October 1744, by Peter Monamy. 

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An OPEC for Nations of Origin? (LATE UPDATE)

OPEC is the organization of oil-producing countries which regulates their production, price, etc. A number of people have suggested that perhaps a similar movement should be adopted among nations of origin for antiquities loans, repatriations, and perhaps even licit sales. It would seem to be a terrific strategy for these nations to combine their efforts, so long as they can agree upon similar strategies. A few items in the news and among other blogs point to the emergence of such a collaboration.
First, Italy and Greece have continued their cooperation. The Greek Minister of Culture, Mihalis Liapis and Sandro Bondi, the Italian Minister for Culture have signed a memorandum of cooperation on cultural issues. As part of the agreement, the Nostoi exhibition will travel to the New Acropolis Museum in Athens in September, and there will likely be more pressure on institutions and private collectors to return objects, as David Gill recently noted with the news that Shelby White will return objects to Greece.

This news comes as Egypt continued its recent efforts and signed yet another agreement, this time with Ecuador. Egypt has already signed agreements with Italy, Cyprus, Denmark, Cuba, Kazakhstan, Jordan, Peru and Switzerland according to the Egyptian weekly Al-Ahram.

I think we can take a couple of lessons from these efforts. First, it is another indication that UNESCO has had a difficult time building consensus, and the spread of these bilateral agreements is a sign the UNESCO Convention itself does very little if a signatory does not want to give much teeth to its accession.

Second, these repatriations and cooperation may be a very good thing, however the real test of these efforts remains how well sites are protected, and whether there remains a workable heritage management policy in these nations. Recent news out of Greece suggests they are not. It seems last month the Greek parliament has taken a step last month to allow divers to access the entirety of the Greek coastline. This would be very good for tourism, but how are the objects these divers find going to be managed or educated? How will sites be affected?

Pictured here of course is the Bronze Statue of a Victorious Youth, a statue found by chance in the Adriatic in the 1960s. How many more of these objects will be uncovered if the Greek coast is opened up to divers? I know very little about how the Greek waters are currently protected, but it would seem to me to be a poor policy which only criticizes foreign institutions and buyers while not properly protecting domestic objects and sites before they are exported.


David Gill has kindly noted in the comments, and on his blog that the report I noted above is out-of-date and most likely inaccurate. It seems Greece is not, of course, thinking about opening its coast to amateur underwater salvors. However, I think the underlying question I raised is still valid in Greece and elsewhere: what can and should be done about underwater sites and wrecks

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Personal Note

I am pleased to announce that my PhD thesis has been completed, successfully defended, corrected and printed. It’s titled “Preventing and Repairing These Losses: The Legal Response of the United States and the United Kingdom to the Illicit Trade in Cultural Property”. I think I should have perhaps chosen a more succinct title.

It feels great to be finished, and it was a lot of hard work with some tough decisions, but it wouldn’t have been possible without a lot of help and support from my colleagues here in Aberdeen and Joni (aka “my funder”). I’m sorry to say much of that support was undermined by our French Spaniel and serial abuser pictured here.

I’ve included the table of contents below. I’m still not sure if I want to try and publish it, which would mean a lot more work, and I suppose part of that will depend on where I land in the coming months. I started this little blog as a way to stay productive, even when I couldn’t quite get things going on the thesis. I’ve found it invaluable, and for anyone who writes I think a blog is a great way to keep in the habit of writing.

I’m not sure where we will end up at this point, I plan to continue research into cultural heritage issues, or at least a related field which will allow me to continue the work I’ve been doing. I had what I thought was a good shot at a couple of postdoctoral funding opportunities which would have allowed me to look in some real depth at repatriation, but unfortunately those fell through. On a happier note I am involved with a really exciting project with some people which will create a really great cultural heritage resource, which I’ll talk about in much more depth here in the coming months.

Posting will likely be very light for the next few weeks, as we’re heading back to the States to catch up with family and friends.

Chapter 1: Introduction.. 1

I. The Aims. 1

II. Foundational Issues and Terminology. 3

A. Illicit Cultural Property. 3

B. Source and Market Nations. 3

C. Provenance. 4

III. The Nature and Extent of the Illicit Trade. 6

A. Art 8

B. Antiquities. 9

IV. Laying the Theoretical Framework. 10

A. Values Inherent in Cultural Property Policy. 10

1. Preserving the Object 11

2. Preserving Archaeological Context 12

3. Preserving the National Patrimony. 13

4. International Movement 14

5. Accessibility. 15

B. Cultural Heritage or Cultural Property?. 16

C. How Sympathetic Facts Distort Cultural Property Law.. 17

V. The Scope of this Work. 21

Chapter 2: Regulating Cultural Property at the Source.. 22

I. Introduction: How to Prevent the Illicit Trade at Its Source?. 22

II. Regulation in Source Nations. 23

A. The Typical Approach: Guatemala. 24

B. Other Examples. 27

1. Peru. 27

2. Mexico. 28

3. Nigeria. 29

C. China. 30

D. Italy. 36

E. Cultural Property Strategies in Developing Nations. 39

1. Nationalizing Cultural Property. 39

2. Efficacy of Export Restrictions. 42

3. What can a Source Nation do when an Object has been Exported?. 46

4. Combating the Illicit Trade v. Bare Retentionism47

III. Domestic Regulation of Cultural Property in Market States. 50

A. Domestic Regulation in the United States. 52

1. Initial Federal Efforts. 53

2. The Archaeological Resources Protection Act of 1979. 54

3. The National Historic Preservation Act 56

4. Native American Graves Protection and Repatriation Act 58

5. The Law of Finds. 60

B. Domestic Regulation in the United Kingdom63

1. Scheduled Ancient Monuments. 63

2. Treasure Trove and the Portable Antiquities Scheme. 65

3. Scotland. 69

4. Limited Export Restrictions: The Waverley Criteria. 74

IV. Summary: What are the Key Components to Effective Domestic Regulation?. 78

Chapter 3: Public International Law and Cultural Property.. 80

I. Introduction: Public International Law and Cultural Property. 80

A. Origins of the Protection of Cultural Property. 81

II. Attempts to Forge a Workable International Framework. 84

A. 1954 Hague Convention. 84

1. Defining Cultural Property in the Convention. 86

2. Shortcomings of the Convention. 87

3. The First Protocol 88

4. The Second Protocol 89

III. The 1970 UNESCO Convention. 92

A. Individual Articles. 93

1. Problems with Interpretation: Articles 3 and 6. 93

2. The “Heart” of the Convention: Article 7. 95

3. Defining the Scope of Protection. 97

B. Impact of the Convention. 97

C. Implementation and Bilateral Agreements. 100

1. Implementation of the UNESCO Convention in the US. 100

2. Switzerland. 105

3. Implementation in the UK.. 106

IV. A Case for the Reform of UNESCO.. 108

A. The Perceived Bias in UNESCO Undermines its Efforts. 109

B. The 1995 UNIDROIT Convention. 113

C. The 2001 UNESCO Convention For the Protection of the Underwater Cultural Heritage. 114

V. Summary. 115

Chapter 4: Conflict of Laws in Cultural Property Disputes. 117

I. Introduction: The Problem When the Claims of Two Relative Innocents Collide. 117

II. Manifestations of the Conflict 120

A. Entrustment v. Theft or Wrongful Dispossession. 121

B. When the Conflict Involves Statutes of Limitations. 123

C. When Tort Rules Conflict 127

D. When Movable Property Rules Conflict 129

E. The Consequences of the Choice of Law Challenge in Art and Antiquities Litigation. 131

III. The 1995 UNIDROIT Convention. 135

A. What UNIDROIT Got Right 136

1. Compensation for the Diligent 136

2. Highlighting Due Diligence. 137

3. Limited Right of Return. 139

B. Two Weaknesses Prohibit Widespread Implementation. 140

IV. The General Choice of Law Inquiry and Alternatives. 141

A. The General Rule: Lex Rei Sitae. 141

B. Renvoi 142

C. Lex Originis. 147

V. Summary. 149

Chapter 5: Market Regulation of Cultural Property in the UK.. 151

I. Introduction. 151

II. Recent Reform in the UK.. 151

A. The Select Committee Inquiry. 152

B. The Illicit Trade Advisory Panel 153

C. After Five Years, What Result?. 155

III. UK Restrictions on the International Movement of Cultural Property. 156

A. Customs Powers. 157

B. EU Legislation Governing Cultural Property. 158

C. Accession to the 1970 UNESCO Convention. 161

D. Public Laws of Foreign States. 161

1. Nationalization and Export Restrictions. 162

2. Stigmatizing Illegally Exported Objects. 163

3. The Recent Iranian Claims: Unpacking Public Laws and Unclear Nationalization. 164

4. Why Not Enforce Public Laws?. 168

IV. The Treatment of Cultural Property in the Law of England and Wales. 170

A. Criminal Law.. 170

1. Theft Act (1968) 170

2. Dealing in Cultural Objects (Offences) Act 2003. 172

B. Private Litigation. 176

1. Contract 177

2. Tort 180

3. Restitution. 182

4. Limitations Rules. 183

V. The Scots Law Treatment of Cultural Property. 186

A. Criminal Law.. 188

1. Common Law Theft 188

2. Reset and Criminal Activity Outside the UK.. 190

3. The Draft Culture (Scotland) Bill 194

B. Private Claims. 194

1. Ownership and Possession. 195

2. Restitution. 196

3. Spuilzie. 200

4. How Might Restitution and Spuilzie Apply. 202

5. Contract and Delict 203

6. Limitations Periods. 204

VI. Summary. 206

Chapter 6: Market Regulation of Cultural Property in the United States. 207

I. Introduction. 207

II. Federal Criminal Regulation. 208

A. National Stolen Property Act Prosecutions under the McClain Doctrine. 209

1. The McClain Cases. 211

2. United States v. Schultz. 214

B. Federal Criminal Forfeitures. 217

1. A History of Forfeiture. 218

2. The Litigation Surrounding Egon Schiele’s Portrait of Wally. 222

3. One Oil Painting Entitled Femme En Blanc by Pablo Picasso. 224

C. US Customs Regulations. 226

D. The Cultural Property Implementation Act 231

III. Civil Remedies. 232

A. The Substantive Claims. 233

B. Limitations Rules. 236

1. Adverse Possession. 237

2. Demand and Refusal 239

3. The Discovery Rule. 241

4. Laches. 243

C. Cultural Property and the UCC.. 244

IV. Summary. 246

Chapter 7: In Conclusion: A Way Forward.. 247

I. In Summary. 247

Appendix I: The 1970 UNESCO Convention.. 250

Appendix II: 1995 UNIDROIT Convention.. 256

Appendix III: The Dealing in Cultural Objects (Offences) Act 2003. 262

Appendix IV: The National Stolen Property Act.. 264

Appendix V: The Cultural Property Implementation Act.. 266

Bibliography.. 279

Cases Cited.. 286

Table of Legislation

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"…no more archeology than…collecting Indian arrowheads"

So says George Bass, a nautical archaeologist at Texas A&M University in an excellent article by John Colapinto in the most recent edition of the New Yorker on Odyssey Marine, titled “Secrets of the Deep”.

In May of 2007 the company announced it had discovered a large colonial-era wreck which may perhaps be the largest underwater treasure recovery in history. Before the announcement the company “had transferred the gold to fife hundred and fifty-one plastic buckets, loaded them onto a chartered jet, and flown them to the United States from Gibraltar.” The company has termed the wreck a code name, the Black Swan, and refused to divulge its location. At present, Spain has brought suit in Federal District Court in Tampa, Florida seeking recovery of the coins under the doctrine of sovereign immunity. Presiding over the case is U.S. District Court Judge Mark Pizzo, who incidentally presided over a Securities and Exchange Commission trial of many of the managers of a company called Seahawk for insider trading. The defendants there were acquitted, but went on to found Odyssey Marine.

Under the Foreign Sovereign Immunities Act, of 1976, Spain may be able to claim the coins, so long as the vessel was not engaged in commercial operations. This may lead to the strange issue of Spain and Odyssey Marine arguing over the primary motive of a vessel and her crew which may have sank over two-hundred years ago.

There have been no shortage of critics of Odyssey Marine and its endeavors. UNESCO Director General Koichiro Matsuura strongly condemned the efforts in an editorial in the Miami Herald, and Peru has even stated its ethical claim for the gold.

Greg Stemm is the current CEO of Odyssey Marine, who was acquitted in the earlier SEC prosecution, argues in the New Yorker that “by publicizing the shipwrecks it finds–on TV specials, in books, and on its Web site–the company does more to educate people about our seafaring past than academics do.” As Stemm says “If I were an archeologist today, I’d be saying, ‘Why aren’t we out there working with [them]?”

Colapinto has helpfully solicited the opinions of some archaeologists, and they are not positive. George Bass of Texas A&M says “Finding, raising, and conserving artifacts is no more archeology than my aunt’s careful collecting of Indian arrowheads on her South Carolina farm.” I’m hardly an expert on marine archaeology, but there seems to be a very big gap between Odyssey’s activities and Bass’ efforts in excavating an 11th-century wreck off Turkey. He and the team of researchers spent three decades “piec[ing] together nearly a million fragments of glass retrieved from the wreck. These yielded beakers, cups, bowls, and bottles, and, for the first time, information about medieval Islamic glassware.” Careful excavation of underwater sites can reveal important historical information. The Titanic may not have been sunk by an iceberg, but by cheap rivets (it was this tragic disaster that spawned perhaps the worst movie of the last 20 years).

I find myself becoming more concerned with Odyssey Marine and its methods the more I learn about them. Their purpose in the Black Swan case has been all about the coins, and there are even indications they have manipulated news reports and discoveries to time with selling shares in the company. In this case, the more they know about the wreck, the harder it may be to keep the coins. They do not seem to interested in serious archaeological study, but rather want a kind of superficial appearance of archaeological study to sell more of the objects they find. Odyssey, nor the predecessor company Seahawk has never published any of its research in a peer-reviewed journal. I think there is a lot to criticize about Odyssey’s approach. However I do not think the UK and Spain are entirely blameless either. They have hired the company to search their waters, and it strikes me as a bit odd that Spain has reacted in this way when they had hired Odyssey Marine to search Spanish waters.

The presumption has long been that the salvor will be entitled to a portion of what they find on the ocean because they have risked their equipment, or their lives in some cases to salvage underwater sites. That general position will not change any time soon. The 2001 UNESCO Underwater Heritage Convention takes an aggressive line, and prohibits all commercial exploitation of underwater cultural heritage. This is a step many nations will refuse to take. Only 15 nations have signed on, and the convention requires 20 before it enters into force. In this case, by arguing too vehemently, I think UNESCO has left itself with no say on the disposition of underwater sites found in international waters.

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UNESCO Condemnation of the Black Swan Recovery

Koichiro Matsuura has an interesting editorial in yesterday’s Miami Herald on Odyssey Marine, underwater archaeology and the Black Swan wreck. He is exactly right about the number of wrecks under the sea, how important they are, and what a resource they could be if excavated scientifically. I agree that commercial exploitation certainly damages underwater archaeological sites, but UNESCO needs to do a better job of bridging the gap between archaeology and commerce.

Rather than attempting to ban all commercial use of underwater sites, why not move forward and show how commercial exploitation can be sensitive to the archaeological context when done properly? Instead of taking a combative approach, why not co-opt these salvage operations as archaeological efforts?

Admiralty law is one of the oldest branches of the law, dating back thousands of years. The presumption has long been that the salvor will be entitled to a portion of what they find on the ocean because they have risked their equipment, or their lives in some cases to salvage underwater sites. That general position will not change any time soon. The 2001 UNESCO Underwater Heritage Convention takes an aggressive line, and prohibits all commercial exploitation of underwater cultural heritage. This is a step many nations will refuse to take. Only 15 nations have signed on, and the convention requires 20 before it enters into force. In this case, by arguing too vehemently, I think UNESCO has left itself with no say on the disposition of underwater sites found in international waters.

Here is the full text of Matsuura’s editorial:


It may be the richest treasure ever discovered in a shipwreck — hundreds of thousands of gold and silver coins. A private firm announced it had recovered them from a colonial-era vessel, dubbed the ”Black Swan.” The story came out last May and attracted worldwide attention. But the Black Swan isn’t a unique case. A few months ago, important finds were made of sunken ships, and at least one of them, off the coast of Cirebon, in Java, was destroyed. Many other such wrecks have been found and looted in recent years, in locations ranging from the northern Atlantic to the South China Sea.

Underwater cultural heritage is as precious as heritage on land. It comprises archaeological sites of great significance such as the ruins of the Alexandria lighthouse, one of the ancient world’s seven wonders; the Carthage of antiquity in North Africa; the fabulous Mahabalipuram and Dwarka temples in India; and numerous Neolithic villages that remain submerged in the Black Sea.

It also includes the remains of King Philip II of Spain’s invincible Armada and Kublai Khan’s fleet, as well as an estimated three million sunken ships scattered on the ocean floors. These underwater archaeological sites are often better preserved than sites on dry land because cultural heritage is protected by a slow rate of deterioration and the lack of oxygen. Their inaccessibility further shields them from looting. They can therefore teach us a great deal about the origins and history of civilization.

There is an urgent need to protect this underwater cultural heritage, which for the last several years has come increasingly under threat. Technical progress in detection and diving and escalating prices on the international market for objects snatched from the deep have led to the loss of many particularly valuable archaeological sites and seen their precious cultural objects dispersed. The problem is further aggravated by the overly prevalent view of such archaeological sites as ”treasures” that can be discovered and appropriated. They should in fact be considered essential elements of a common cultural heritage, as communal property to be preserved.

The perspective must change. UNESCO has been fighting for years to change it. In November 2001, its General Conference adopted the Convention on the Protection of the Underwater Cultural Heritage. This international treaty, which now counts 15 states parties, will enter into force when 20 countries have ratified it.

The UNESCO text defines underwater cultural heritage as ”all traces of human existence having a cultural, historical or archaeological character that have been partially or totally under water, periodically or continuously, for at least 100 years.” It promotes in situ preservation, given the importance of the historical context of the submerged cultural objects as well as the favorable conditions for conserving these objects, namely the lack of oxygen and slow deterioration as long as they remain underwater.

Condemn looting

Without presuming to resolve the sensitive issue of property of cultural objects that may be disputed between several states — generally the state of the ship’s flag and the coastal state — and without prohibiting professional archaeology or preventing recovery activities by explorers working in responsible ways, the text establishes the principle that “Underwater cultural heritage shall not be commercially exploited.”

The international community must mobilize to ratify the Convention on the Protection of the Underwater Cultural Heritage. If we condemn acts of looting in which archaeological sites are gutted with bulldozers or Mayan steles and Khmer sculptures torn out with chain-saws, then we must also sanction underwater looting that deprives future generations of the context surrounding artifacts. The international community must have means at its disposal that are commensurate with its ambitions to protect the integrity of its underwater cultural heritage.

Koichiro Matsuura is director-general of UNESCO.

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Treasure, Salvage and Archaeology

John Ward Anderson has an informative update on the ongoing dispute between Spain and Odyssey Marine in today’s Washington Post.

I’ve written on this before, but here’s a short recap. In May it was announced that $500 million worth of silver and gold was discovered from a wreck Odyssey has code named the Black Swan. The discovery is probably the most valuable underwater find yet discovered. Speculation abounds that the wreck could be the Merchant Royal which sank off Cornwall, or the Nuestra Senora de las Mercedes, a Spanish frigate sunk by the British Navy in 1804 known to be carrying a great deal of silver.

Spain suspected Odyssey Marine had discovered one of her ships, and brought a legal action against the company in Federal District Court in Florida. Later in July, one of Odyssey’s vessels, the Ocean Alert, was forced to remain in port in the Spanish port of Algeciras before releasing it. Another vessel, the Odyssey Explorer, has been detained in Gibraltar because Spanish authorities have warrants to detain it if it leaves Britain’s waters. This is a difficult issue as the territorial waters in the area are open to a great deal of dispute.

In the Washington Post, we get some of the comments of the interested parties. Here’s what Greg Stemm, co-founder of Odyssey Marine had to say:

Shipwrecks are a resource like any other resource, and every other resource — scientific, cultural or otherwise, whether it’s coins, whether it’s stamps, whether it’s antiques — it’s all owned, bought, sold and traded all the time.

That’s one perspective certainly, but many archaeologists are very critical of commercial exploitation of historic wrecks. James Goold, Spain’s counsel gives his client’s view:

Everything points to Odyssey having known exactly what ship they were looking for and having then decided to claim it was unidentified,… The law is quite clear that an owner of a ship remains the owner after it sinks, and a sovereign nation has a right to protect its cultural heritage, … Spain has cultural heritage laws, and Spain has a program of underwater archaeology, and there are projects Spain undertakes by itself or with archaeological institutes for the public benefit, but not so someone can scoop up gold coins and sell them…

At present, the situation is untenable, as advances in technology make it easier to discover these wrecks. Also, the state of admiralty law is essentially just finders keepers. That does not seem likely to change unless the archaeology and heritage lobby can effectively negotiate with the interest of commercial exploitation. Perhaps some archaeological research is better than nothing?

The dispute will be interesting to watch unfold. If the vessel is Spanish, Spain may have rights to it if it is not deemed abandoned. However Odyssey will likely be entitled to some kind of salvage award, as admiralty rewards finders. Admiralty law assumes that a salvor should be rewarded for risking her life and property to rescue the property of another. From what I remember of my admiralty course in law school, it is likely that because this sunken treasure has been lost for a great deal of time, Odyssey Marine will likely get the majority of the value of the property. The ultimate determination is up to the judge to determine though, and will sometimes depend on how dangerous or how much skill was needed to find the wreck.

The 2001 UNESCO Convention on Underwater Cultural Heritage (UCH) precludes commercial exploitation of wrecks altogether. In an ideal world that rule might work. But archaeological resources–at sea or on land– are seldom left alone, and few nations have signed on to the UCH convention. I think archaeologists are understandably frustrated, because they know how much such a wreck could tell us, and we don’t really have any way of knowing what Odyssey is doing with the wreck.

A convention or a policy which only incorporates the view of the archaeologists will always fail, and that is the biggest problem with the UCH Convention. Major market nations, and historic superpowers with historic wrecks (like nuclear subs, warships, etc.) will not sign on. Ideally a pragmatic solution must be reached, similar to the Portable Antiquities Scheme in England & Wales or the Scottish Treasure Trove system whereby admiralty law should incorporate archaeological value into salvage disputes. At present the only value is that of the objects rescued. But the archaeological record has value as well, and perhaps that should be quantified as well. Salvors could be punished for destroying or failing to document the record. That will take legislation or treaties. Judges cannot inject such a requirement. The first step will be to build a consensus for action. In the interim, the simple finders keepers rule will prevail.

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