Underwater Cultural Heritage

by

Mariano J. Aznar Gómez

• LAST REVIEWED: 30 July 2014
• LAST MODIFIED: 30 July 2014
• DOI: 10.1093/obo/9780199796953-0115

Introduction

As a legal concept, underwater cultural heritage (UCH) covers all traces of human existence—sites, structures, wrecks and their cargo, artifacts, prehistoric objects, etc.—having a cultural, historical, or archaeological character that are or have been underwater. To this definition, some legislation adds a time threshold (a number of years, a date from which time is counted, or a particular period); others include the archaeological and natural context of the objects or refer to other components included in land cultural heritage. Although history and old tales have engraved the term treasure into the collective imagination—the fortune obtained by Jules Verne’s Captain Nemo came from old Spanish galleons wrecked in 1702—archaeologist have tried to avoid this term since it reduces the cultural heritage to a monetary market value, neglecting the historical value of the objects and their context as a fundamental building block in history’s quest for explanations. To some extent, this has been a by-product of treasure-hunting activities, which have attracted widespread attention in mass media and in legal literature. Whereas treasure hunting may be important—it has been cited as the central threat to UCH—the vast majority of such efforts have come from normal, licit human activities in maritime areas and coastal zones that have endangered that heritage in an exponential way. State efforts to protect these capsules of time have been undertaken at two different levels. At the national level, actions have been directed at enacting and expanding legislation. At the international level, governments have secured the adoption of several conventions and other texts, both soft and hard. The United Nations Educational, Scientific and Cultural Organization (UNESCO) has served as a catalyst for these normative and programmatic efforts. The main by-product of these efforts is the Convention for the Protection of the Underwater Cultural Heritage (text available online), adopted on 3 November 2001 (2562 UNTS 1, in force since 2 January 2009). However, the adoption of this convention was both preceded by and followed by in-depth discussions concerning its compatibility with the law of the sea, mainly codified in the 1982 UN Law of the Sea Convention (UNCLOS), and with particular rules of maritime law governing the salvage of sunken vessels. To date, these two questions—along with the legal status of sunken state vessels—remain the central concerns of states that have yet to sign the UNESCO Convention. These issues are addressed in the growing literature on UCH.

General Overviews

International law literature begun to focus increasingly on the legal protection of underwater cultural heritage in the 1970s and 1980s based on two developments: first, the development of underwater technology allowed human activities in more deeper marine zones; and, second, the absence of a clear regulation of these activities given that the UNCLOS did not properly or completely address the question. Discussions both general and particular ensued that centered on the legal and archaeological consequences of activities in the 1980s that centered on several famous wrecks: for example, the Atocha or the Geldermalsen, two older wrecked vessels, and the Titanic, a more recent example of submerged objects deserving a particular legal regime. A legal position was defended—mainly in the literature of common law systems and particularly in the United States—that affirmed that private law admiralty rules (particularly the law of finds and the law of salvage) plainly applied to UCH (see the Application of Maritime Law). This position met strong opposition from the civil law literature and the archaeological community as a whole, since not only salvage law, in particular, but also the law of finds, in general, were understood as inappropriate since both these sets of rules reduce UCH to its commercial value, if any. Migliorino 1984 and Strati 1995 deal with all of these issues. A discussion was also held before admiralty courts between those undertaking salvage operations and historical, cultural, or sovereign owners or defendants. The saga of the Titanic before French and US courts is well known (see the Case of the RMS Titanic) as is the Spanish Armada case before the Irish courts or, more recently, two cases before US courts involving several Spanish frigates: the Juno and La Galga case and the Mercedes case. Other cases have been discussed and settled amicably between states, most of them dealing with the sunken state vessels covered by the sovereign immunity principle, as agreed: the Dutch fleet in Australia, the CSS Alabama, the HMS Birkenhead, the French vessel La Belle, etc. Some of these cases are documented in Prott and Srong 1999 and Prott, et al. 2000 (both cited under Edited Volumes, Documentation, and Selected Papers) and discussed in Camarda and Scovazzi 2002 (cited under Analysis of the UNESCO Convention) or Aznar 2004. All these discussions—and the treasure hunter’s activities behind them—compelled an acceleration of negotiations and, during the 1990s, informal, technical, and multilateral conversations were held. Following an unsuccessful attempt in the Council of Europe in 1985 to secure a draft convention, in 1994 the International Law Association (ILA) adopted and transmitted to UNESCO a draft convention (a nonofficial text can be retrieved online). In 1996, the International Council of Monuments and Sites (ICOMOS) adopted the International Charter on the Protection and Management of the Underwater Cultural Heritage (text available online). The document was placed before UNESCO in 1997 under whose auspices several meetings of governmental experts took place from 1998 to 2001. In 2001, the UNESCO Convention was drafted and finally adopted. The best guides to this process may be found in O’Keefe 2002 and Garabello 2004. This legislative effort and subsequent analysis of the text has given rise to a new set of works on the legal protection of UCH (Boesten 2002, Aznar 2004). Following the convention’s entry into force, additional text references have appeared dealing with state efforts to implement its provisions. The most recent work is Dromgoole 2013, which analyzes not only the drafting of the convention, but also its aftermath. It must be stressed that almost all approaches to the legal protection of underwater cultural heritage often use what could be called a “threefold analysis,” which consists of (1) a scrutiny of the protection given by UNCLOS (and its critique), (2) a (critical) appraisal of the new regime foreseen by the UNESCO Convention, and (3) an analysis of the main concerns still under discussion, i.e., the legal status of sunken state vessels (particularly warships), the creeping jurisdiction concerns, or the application of salvage law to underwater cultural heritage (among other issues). Therefore, the term threefold analysis, which does not imply any sort of epistemological approach, will be understood in this sense in this article and will serve to guide the organization of selected entries on underwater cultural heritage. See also Bonifácio Ramos 2008 and Scovazzi 2009.

• Aznar, Mariano J. La proteccion internacional del patrimonio cultural subacuático, con especial referencia al caso de España. Valencia, Spain: Tirant Lo Blanch, 2004.

  This book is the first approach to the subject written in Spanish. It covers both the general protection offered by UNCLOS and the particular protection offered by the UNESCO Convention. It also addresses the particular concerns that arose during negotiations of the latter and how they were solved, most especially by Spain. Finally, the third part is devoted to Spanish legislation and practice, both domestic and international.

• Boesten, Eke. Archaeological and/or Historic Valuable Shipwrecks in International Waters: Public International Law and What It Offers. The Hague: TMC Asser, 2002.

  DOI: 10.1007/978-90-6704-611-4

  Three regimes are investigated as to their applicability: The Law of the Sea Convention (1982), the system of admiralty law as adapted to these particular circumstances and used by US courts, and the UNESCO Convention for the Protection of the Underwater Cultural Heritage. Boesten’s book offers a quite different vision since she proposes application of common law admiralty rules to underwater cultural heritage. The book deals only with shipwrecks, i.e., with only a portion of underwater cultural heritage, and with only those wrecked in international waters.

• Bonifácio Ramos, José Luis. O achatamento de bens culturais subaquáticos. Lisbon, Portugal: Livraia Petrony, 2008.

  This is the only monograph written in Portuguese on the protection of UCH from a legal perspective. It includes a complete analysis not only from the perspective of public international law, but also from maritime law, with special attention given to the legal framework (and its critique) offered by Portuguese domestic legislation.

• Dromgoole, Sarah. Underwater Cultural Heritage and International Law. Cambridge, UK: Cambridge University Press, 2013.

  DOI: 10.1017/CBO9781139020503

  Dromgoole’s new book explores the development and present status of the legal framework protecting UCH and assesses how it may evolve in the future. Issues analyzed include the legal status of sunken vessels and cargoes and the role played by sovereign immunity, the application of salvage law, the ethics of commercial exploitation, and the question of jurisdictional competence to regulate activities beyond territorial sea limits.

• Garabello, Roberta. La convenzione UNESCO sulla protezione del patrimonio culturale subacqueo. Milan: Giuffrè Editore, 2004.

  Roberta Garabello offers a complete analysis of the precedents, particularly UNCLOS and some bilateral agreements, prior to conclusion of the UNESCO Convention, and whose impact is meticulously addressed in two different ways. First, she analyzes the regime of underwater cultural heritage in the different maritime zones, and, second, she addresses two of the main concerns surrounding the protection of underwater cultural heritage, namely, the legal status of sunken vessels and the applicability of salvage law.

• Migliorino, Luigi. Il recupero degli oggetti storici e archeologici sommersi el diritto internazionale. Milan: Giuffré Editore, 1984.

  Providing a continental point of view, and particularly focusing on questions of title and property, this book was one of the first to appear. It particularly assesses the (absent) regulation of the matter in UNCLOS and discusses contradictions posed by the 1982 convention with regard to other applicable rules of international law.

• O’Keefe, Patrick. Shipwrecked Heritage: A Commentary on the UNESCO Convention on Underwater Cultural Heritage. Leicester, UK: Institute of Art and Law, 2002.

  O’Keefe’s longstanding expertise on underwater cultural heritage is reflected in his commentary to the UNESCO Convention. The book provides a detailed article-by-article commentary on the convention, and it includes background information and insights into the thinking behind the provisions. It also gives an interpretation of its provisions.

• Scovazzi, Tullio. “Underwater Cultural Heritage.” In Max Planck Encyclopedia of Public International Law. Edited by Rüdiger Wolfrum. New York: Oxford University Press, 2009.

  This article provides an authoritative and complete tour d’horizon on the concept and legal regulation of UCH (with a selection of documents and bibliography). It includes not only an assessment of the governing rules included in UNCLOS, the UNESCO Convention, and other bilateral agreements, but also an analysis of some domestic legislation. It also includes the perennially discussed question of the legal status of sunken states vessels and aircraft.

• Strati, Anastasia. The Protection of the Underwater Cultural Heritage: An Emerging Objective of the Contemporary Law of the Sea. The Hague: Martinus Nijhoff, 1995.

  This was the first comprehensive review of the subject from an international law perspective although it also offers views based on cultural and private law practices. Edited when the UNESCO Convention was being drafted, Strati’s personal attitudes toward the latter are also reflected in her book as well as in other subsequent publications.