UNESCO Convention on the Protection of Underwater Cultural Heritage

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.

Questions or Comments? Email me at derek.fincham@gmail.com

Spain Claims "Black Swan" is the Nuestra Senora de las Mercedes

Yesterday, Spain filed papers before US Magistrate Judge Mark Pizzo in the Federal District Court for the Central District of Florida. They argued the evidence provided to them by Odyssey Marine has been evaluated by Spanish archaeologists and that “with complete certainty” these objects came from the colonial galleon Nuestra Señora de las Mercedes, sunk by the British in 1804.

In March, judge Pizzo ordered Odyssey to share information with the Spanish, Odyssey Marine Exploration Inc. v. The Unidentified Shipwrecked Vessel, 2008 WL 691686 M.D.Fla.,2008. (March 12, 2008). Spain’s announcement yesterday appears to be is response and evaluation fo this evidence provided by Odyssey. Despite attempting to with hold the location of the wreck, and even code-naming the find the Black Swan, Spain has seemingly established the identity of the vessel. James Goold, counsel for Spain argued “The mystery is over … [the treasure] belongs to the Spanish Armada.” Certainly, Spain is staking its claim to the moral high ground, as it apparently argued yesterday that it never authorized Odyssey to molest the “gravesite of hundreds of Spanish sailors and their family members.”

Yesterday’s filings don’t yet appear to be available on Westlaw, but as I understand, Spain is arguing the Kingdom of Spain has not abandoned ownership rights in the vessel or the cargo. Further, Spain argues it has not permitted the salvage of its vessels without authorization. Spain is asserting its rights under sovereign immunity. As I’ve stated before, 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 situation where a determinative issue may involve Spain and Odyssey Marine arguing over the primary motive of a vessel and her crew which may have sank over two-hundred years ago.

None of this controversy seems to be helping Odyssey’s stock price, which is down 22% this year. The finds may be worth as much as $500 million US, but its beginning to look increasingly likely that Spain is gaining the upper hand, and Odyssey may be in jeopardy of earning any salvage award.

"…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.

Questions or Comments? Email me at derek.fincham@gmail.com

Spain Seizes the Ocean Explorer

An intrepid commenter has alerted me that Spain has in fact seized the Ocean Explorer, the vessel belonging to Odyssey Marine which had been anchored in the British colony of Gibraltar. It’s the latest in an ongoing dispute between the salvage company and Spain over perhaps the largest single underwater recovery in history. The BBC has coverage here.

On Tuesday, patrol boats from Spain’s maritime police intercepted the 76m Odyssey Explorer, owned by underwater salvage firm Odyssey Marine International, three miles off the coast of Gibraltar. It was ordered to the Spanish port of Algeciras for inspection. Spain’s Guardia Civil has been keeping a close eye on the company’s vessel since a Spanish judge ordered that it be detained and searched if it left port in Gibraltar. The company says its recovery vessel has been effectively blockaded since the ruling in June. Spain believes it could provide clues to the identity and location of the wreck that yielded half-a-million colonial era silver and gold coins. It suspects that a Spanish galleon is being secretly plundered – or that the wreck lies in Spanish waters.

This is the predictable result when there is no workable international legal framework governing underwater archaeological sites, combined with the failure of states to delimit their maritime boundaries. As I’ve stated before, whether the waters near Gibraltar are international is still very much an open question.

Perhaps most importantly, Odyssey may have discovered the largest ever quantity of shipwrecked “treasure”, but it seems Spain is going to do everything in their power to prevent the company from profiting off the recovery; in the hopes perhaps of discouraging future salvage operations. Is this merely profit-seeking, or is there archaeological research being conducted? The fact that the wreck has been code-named the “black swan” and has not been revealed to Spain or other nations in the Mediterranean indicates the former.

Questions or Comments? Email me at derek.fincham@gmail.com

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:

By KOICHIRO MATSUURA

www.unesco.org

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.

Questions or Comments? Email me at derek.fincham@gmail.com

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.

Questions or Comments? Email me at derek.fincham@gmail.com

Spain and Odyssey Marine

The Spanish civil guard has seized a vessel belonging to Odyssey Marine soon after it left Gibraltar. As I’ve stated in earlier posts, Odyssey Marine found a 17th Century wreck somewhere in the Atlantic, which it says may be worth $500 million. The gold has already been shipped back to the United States. Both Odyssey Marine and authorities from Gibraltar say the ship was illegally seized because it was in international waters according to the BBC. However, as I’ve said before it isn’t at all clear where Spanish waters end and International waters begin, and the interested parties have of course not clearly laid out their maritime boundaries. I don’t consider myself an expert on admiralty law, so I’m not really sure who has the stronger claim to the treasure which was shipped back to the United States. I do know that the Federal case pending in Florida will be interesting to watch unfold. From the cultural policy perspective though, I haven’t seen any evidence that Odyssey is conducting serious archaeological study, though perhaps they are.

(Hat tip to David Nishimura at Cronaca)

Questions or Comments? Email me at derek.fincham@gmail.com

More on Odyssey Marine

NPR’s All Things Considered had an interesting story on Odyssey Marine yesterday. It’s a good chance to hear both sides of the debate.

One of the founders of the publicly traded company, Greg Stemm said, “The only thing we’re saying right now is that we’ve really recovered about a half-million coins, and a number of artifacts that are from the colonial period … that were in the Atlantic Ocean.”

But the attorney representing Spain, Jim Goold says “The U.S. has a lot of Navy and other ships that have sunk around the world… The idea that … anyone can take U.S. government property just by looking around in the water and pulling it up without authorization … just doesn’t work. And that’s not what the courts say.”

It will be interesting to see how this case unfolds. It strikes me there is a tremendous tension between studying the wreck scientifically and commercially excavating it. The UNESCO Underwater Heritage Convention precludes commercial exploitation of wrecks. Finding a workable compromise between commerce and archaeology is particularly difficult with underwater heritage. This massive half a billion recovery from the still unidentified wreck underlines the problem.

Questions or Comments? Email me at derek.fincham@gmail.com

Largest Historical Shipwreck

Recently, Odyssey Marine Exploration announced they had recovered 500,000 silver and gold coins from a shipwreck which may have been 40 miles from Land’s End in Cornwall. It may be a record for the The BBC has a story here and video here. The Daily Mail has a story here. Odyssey have not released the location of the wreck for security and legal reasons. The treasure has been stored in an “undisclosed location” in the US. The value of the coins recovered could approach half a billion dollars.

Odyssey stresses it is the legal owner of the coins, and that it conducted the salvage by “diligently follow[ing] archaeological protocols using advanced robotic technology, and the artifacts are now undergoing a meticulous conservation process”. I’ll confess a profound ignorance of how much archaeologists can learn from shipwrecks. However Will Anderson over at the assemblage expresses some well-founded skepticism about the archaeological merits of the salvage, “Whether what Odyssey Marine Exploration does can be termed archaeology is debatable”. And in response to claims that the archaeological protocols were followed, “So we shall soon be seeing a full and thorough excavation report published, the site will be assessed and managed, and the loot will not be flogged over the internet”? Chances of that seem unlikely, as Odyssey has already sold coal from another shipwreck, the SS Republic.

Peter Spiro over at Opinio Juris summarizes the current state of shipwreck recovery law in International waters, and ties in the difficulties with regulation of underwater cultural heritage to a new book by Dan Drezner. Drezner postulates a “club standards” situation where there is low conflict among great powers and high conflict between the great powers and other actors. Spiro says “that seems to be what has emerged in the context of treasure hunting, with the great powers reaching ad hoc agreements on particular finds (as was the case with the Titanic), at the same time as they also handle the issue through domestic law. The universalizing option of an open-to-all multilateral treaty gets left by the wayside”.

That brings us to the UNESCO Convention on the Protection of Underwater Cultural Heritage. JH Merryman has been a very vocal critic of the Convention, because it completely precludes commercial exploitation, as was the case here. 14 Nations have signed on. The convention has received little support from most European nations and the United States. Here is an excellent overview of the Convention from Robert Blumberg, who led the US delegation to the UNESCO negotiations. As it stands now, there is no comprehensive law regulating wrecks found in International waters, which begins 24 miles out to sea. Regulation which does exist comes about through multilateral agreements for individual wrecks and bilateral agreements, or domestic legislation.

Clearly, this record recovery will anger some nations, and may provide some new impetus towards forming a workable convention for maritime states, perhaps by amending the UNESCO UCH convention.

Questions or Comments? Email me at derek.fincham@gmail.com