Diving for Diamonds: Letter to Office of Oceans Affairs - Archaeology Magazine Archive

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Letter to Office of Oceans Affairs "Diving for Diamonds"
June 10, 1998

Mr. Robert Blumberg
Office of Oceans Affairs
Room 5805
Department of State
Washington, D.C. 20520

Dear Mr. Blumberg:

The Archaeological Institute of America (AIA), the largest archaeological organization in the United States, with over 10,000 members, welcomes the opportunity to comment on the UNESCO Draft Convention on the Protection of the Underwater Cultural Heritage. Comprised of professionals in archaeology and interested laity, the AIA is dedicated to archaeological education, publication, and the preservation of the world's cultural patrimony.

The seas beyond the territorial jurisdiction of nations comprise the last great archaeological frontier, a vast domain containing numerous archaeological resources--including not only sunken ships and aircraft, but also submerged ports, docks, and wharves; historical towns; and even prehistoric sites. This underwater cultural heritage constitutes a primary and often unique record of human history, and deserves to be managed in the common interest.

Archaeological sites located in internal waters, archipelagic waters, and territorial waters may be protected and controlled by the legal authority of the relevant coastal states. But archaeological resources in the submerged, extraterritorial ocean realm--often very well preserved in deep, anerobic environments--lack any effective legal regime that might provide a mechanism for their preservation and management in the public interest. They are, in fact, wholly exposed to threats from numerous sources, especially the depradations of commercial recovery efforts and unregulated ocean development projects.

For this reason, we welcome the efforts of UNESCO and the United Nations Division of Ocean Affairs and Law of the Sea in proposing the Draft Convention on the Protection of the Underwater Cultural Heritage. Members of the Archaeological Institute of America have followed closely the progress of the proposed Convention to date, commenting on preliminary drafts of the Convention by the International Law Association (beginning in 1993), and participating in the drafting of the ICOMOS International Charter on the Protection and Management of Underwater Cultural Heritage, which was ratified in 1996.

We strongly support the present version of the Convention (April, 1998) and urge the United States delegation to endorse it.

Following are specific comments on various questions solicited by you in your memorandum of 27 May 1998.

1. How should underwater cultural heritage be defined?

The definition of underwater cultural heritage should be broadly construed, comprehending not only shipwrecks and their cargo, but all vestiges of submerged archaeological resources. A more inclusive definition would cover all of the various types of submerged archaeological sites known to exist besides shipwrecks. In the current U.S. law, submerged cultural resources are treated inconsistently. The Abandoned Shipwreck Act of 1987 (43.U.S.C.2101 et seq.), for example, only covers submerged abandoned vessels, their cargoes, and other contents, while oil-drilling projects authorized by the Minerals Management Service are subject to the provisions of the National Historic Preservation Act of 1966, as amended (16U.S.C.470 et seq.), which cover not only shipwrecks but also other submerged cultural resources, such as 10,000-year-old Paleoindian sites.

The definition used in the draft Convention is appropriate, although we would prefer to use the more recent cutoff date of 50 years instead of the Convention's 100 years.

2. Should the Convention be limited to abandoned underwater cultural heritage?

The issue of abandonment is a difficult one, especially in light of recent developments in U.S. case law. Until the Central America case, most ancient shipwrecks were considered to be abandoned by virtue of the long passage of time. As the judge in the Atocha case stated (Treasure Salvors v. The Unidentified Wrecked and Abandoned Sailing Vessel, 569 F.2d 337 [5th Cir., 1978]), "Disposition of a wrecked vessel whose very location has been lost for centuries as though its owner were still in existence stretches a fiction to absurd lengths." A more restrictive view of abandonment emerged, however, in the Central America case; in this view, an express statement of abandonment is considered necessary even for ancient shipwrecks. The recent Brother Jonathan case confirmed the notion of express abandonment; the appellate court agreed with the district court that abandonment could not be inferred merely by the passage of time (Deep Sea Research, Inc. v. The Brother Jonathan, 89 F.3d 688 [9th Cir. 1996]), and the Supreme Court's decision of 22 April 1998 (No. 96-1400), since it did not rule on the question of abandonment, did little to change the importance of the concept of express abandonment.

This restrictive interpretation of the definition of abandonment has been strenuosly argued before the courts by attorneys for treasure salvors. Their goal is to take shipwrecks they wish to salvage out of the jurisdiction of the state and federal governments (in accordance with the Abandoned Shipwreck Act) and return them to admiralty jurisdiction, where they will be once again subject to the laws of salvage and finds. The Abandoned Shipwreck Act had specifically excluded shipwrecks covered by the act from the laws of salvage and finds.

The draft underwater Convention attempts to address this problem by offering a specific definition of abandonment. Underwater cultural heritage would be considered abandoned if 1) the owner of underwater cultural heritage has not pursued research or recovery within 25 years of the availability of the technology for exploration; and 2) at least 50 years have elapsed since the last assertion of interest by the owner, even if no technology for exploration or recovery has been available.

We support this definition of abandonment. It would place the burden on owners of underwater cultural heritage to affirmatively assert an interest in their property. It would also prevent the current situation, where salvors resurrect the ownership rights of long-disinterested parties, and/or purchase ownership rights, for the sake of avoiding the requirements of the Abandoned Shipwreck Act. Express abandonment only serves the purpose of treasure salvors, and does nothing to ensure that underwater cultural heritage will be adequately treated and preserved in the public interest.

3. What should be the competence of the Coastal State in respect of underwater cultural heritage: a) within 24 nautical miles from Territorial Sea baselines?; b) in the Exclusive Economic Zone or on the Continental Shelf beyond 24 nautical miles?

Article 303 (2) of the U.N. Convention on the Law of the Sea (1982) allows for the regulation of "archaeological and historical objects found at sea" within the contiguous zone. Few states have taken advantage of this provision; only France and Tunisia make use of the concept of the contiguous zone in protecting underwater sites within a 24-mile zone.

Instead of limiting competence to the 24-mile zone, we favor the more comprehensive protection of underwater cultural heritage offered by the present draft Convention. Article 5 of the Convention would allow States Parties to "regulate and authorize all activities affecting underwater cultural heritage in the exclusive economic zone and on the continental shelf." The United States already exerts control over some of this area in terms of underwater cultural heritage: archaeological resources are protected in national marine sanctuaries and in oil lease tracts controlled by the Minerals Management Service.

4. Should Admiralty law apply to underwater cultural heritage covered under the Convention?

Traditionally, admiralty law is concerned with the business of carrying passengers and cargo over water. Marine salvage, a part of admiralty law, evolved as a means of encouraging the saving of property that was at risk of loss, damage, or deterioration in a maritime context. The principle was to save property from imminent marine peril on behalf of its owners and return it to the stream of commerce. It was never intended to apply to submerged archaeological sites or ancient sunken ships.

In recent decades, treasure salvage has been added as an element of marine salvage under admiralty law. From an archaeological perspective, salvage law is a wholly inappropriate legal regime for treating underwater cultural heritage. Salvage law regards objects primarily as property with commercial value and rewards its recovery, regardless of its importance and value as cultural heritage. It encourages private-sector commercial recovery efforts, and is incapable of ensuring the adequate protection of underwater cultural heritage "for the benefit of mankind as a whole," a basic principle expressed in the U.N. Convention on the Law of the Sea (1982) and reiterated in the present Convention (Article 3).

The U.S. Abandoned Shipwreck Act of 1987 (ASA) recognized the fundamental conflict between admiralty jurisdiction and preservation of the underwater cultural heritage when it stated that the laws of salvage and finds did not apply to shipwrecks under the ASA's jurisdiction. (The point is only further confirmed by the recent, and to date successful, efforts of some treasure hunters to have certain historical shipwrecks effectively removed from the jurisdiction of the ASA by arguing that they are not abandoned.)

Treasure hunting, or private sector commercial recovery, has never been able to convincingly demonstrate that it can operate in a way that satisfies the archaeological and preservation interests. Commercial recovery frequently results in the destruction of underwater cultural resources as systematic archaeological recording, excavation, and conservation are sacrificed in the interests of expedient recovery of marketable property. Even commercial projects that are regulated by state authorities have an abysmal record in terms of professional standards of performance, preservation, and dissemination of information. The aims, methods, and practices of treasure hunters are fundamentally at odds with those of archaeologists and preservationists.

Those who favor private sector commercial recovery argue that only entrepreneurs will have sufficient capital to undertake costly exploration and recovery projects in the oceans, and that archaeologists must therefore collaborate with them even if it means sacrificing some of their ethical standards. But underwater exploration, even of the deep sea, is regularly being conducted by archaeologists with assistance and funding from a variety of sources; treasure hunters are not the only ones who are exploring the seas. And the public interest is often best served by the preservation in place of underwater cultural sites, not by the continuous recovery of waterlogged artifacts with all the attendant problems of conservation and curation.

Those who represent treasure hunters also claim that maritime salvage law is an adequate means of ensuring that preservation values will be taken into consideration during recovery projects. They point to the Central America case, for example, where a new criterion for determining the salvage award was introduced--"the degree to which the salvors worked to protect the historical and archeological value of the wreck and items salved" (Columbus-America Discovery Group, Inc. v. Atlantic Mut. Ins. Co., 974 F.2d 450 (4th Cir. 1992). But admiralty court is no place for matters of archaeological competence to be evaluated; the relevant governmental authorities, with professionals in the disciplines of archaeology, history, and preservation, are more properly to be charged with this responsibility.

In the case of the Central America, for example, despite the court's statements about protection of historical and archaeological values, precious little archaeological information has been made available (if it even exists). According to an entry on the ship in The Encyclopaedia of Underwater Maritime Archaeology (James P. Delgado, editor; British Museum Press, 1997, p. 93): "No overall site photographs, a site map, or any other archaeological information has been released."

In summary, maritime salvage law is thoroughly unsuited for the protection of the underwater cultural heritage; it should have no place in the operation of the Convention.

5. Should underwater cultural heritage be managed solely for the purpose of historic or archeological preservation or should the Convention encourage and facilitate multiple use management including public access and private sector commercial recovery?

The Convention is to be a Convention on the protection of the underwater cultural heritage. Protection in the public interest is the primary goal, and the Preamble of the Convention enumerates the many threats to the underwater cultural heritage, including threats from unsupervized activities, commercial recovery efforts, and looting. We support multiple use management so long as it does not include private sector commercial recovery that is inconsistent with the basic tenets of preservation as detailed in the ICOMOS Charter on the Protection and Management of Underwater Cultural Heritage. For example, public access is to be encouraged, provided it does not damage or diminish the underwater cultural heritage.

Private sector investigations and recovery would be permitted so long as projects were conducted in accordance with the standards outlined in the ICOMOS Charter. These standards include a research design, framed within a perservation perspective; professional staffing; adequate funding; systematic recording and documentation; a conservation program; a site management program; adequate reporting; and curation of the project archive. Certain provisions of the Charter would, in all likelihood, rule out the activities of treasure hunters and shipwreck salvors, including provisions that preservation in situ should be regarded as a first option (Article 1); that recovered underwater heritage be deposited in a permanent curatorial facility (Article 2); that the scientific integrity of the project archive must be maintained (Article 13); and that underwater cultural heritage should not be traded as items of commercial value (Article 13).

We strongly support the draft Convention as a tool for the protection and management of the underwater cultural heritage. Commercial treasure salvage projects should have no role in the Convention.

Thank you for affording the Archaeological Institute of America an opportunity to comment on this important proposed Convention. We support the Convention and urge you to endorse this significant step in protecting the world's underwater cultural heritage.

Sincerely,
Stephen L. Dyson
President

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