United Kingdom

Marine heritage’s troubled waters

The popular assumption is that anything recovered from the sea is ‘finders keepers’

The wreck of HMS Victory, a predecessor of Nelson’s flagship, which the company Odyssey Marine Exploration will investigate after striking a deal with the British government

Two recent news stories have reignited public interest in how historic sites are managed in the deep ocean. On the one hand there is the US court ruling that the 594,000 gold and silver coins originally recovered by Odyssey Marine Exploration from the Black Swan/Mercedes site should be handed over to Spain. On the other hand, there is the news that the wreck of HMS Victory (a predecessor of Nelson’s famous flagship) will be investigated by Odyssey after an agreement was struck with the British government.

There are two issues at stake here. First, there is the legal status of wrecks in deep water in terms of individual as well as national claims on any materials recovered from them. Second, there is the broader issue of the ethical frameworks underlying historic site management—whether “marine” or otherwise—and in turn efforts to better manage, protect and understand such heritage.

It is the second of the issues—the ethics of such exploration—that generally receives the greatest attention, since it is here that emotions run the strongest. On the one hand, many archaeologists criticise the work of organisations like Odyssey for acting contrary to accepted professional tenets, especially the 2001 Unesco Convention on the Protection of the Underwater Cultural Heritage and its insistence that “the protection of underwater cultural heritage through in situ preservation shall be considered as the first option” (convention annex rule one) and that “commercial exploitation… is fundamentally incompatible with the protection and proper management of underwater cultural heritage” (convention annex rule two). On the other hand, many others—some archaeologists and many salvors alike—criticise the Unesco convention as being unworkable, possibly illegal, and crucially the cause of much bureaucratic indecision. Due to the convention’s unrealistic aims, so the argument goes, the very historic sites that the convention seeks to protect are destroyed by natural processes while the archaeologists appointed to their management fail to do anything practical, wrangling instead over the legal minutiae of their remit under the terms of the convention. Better to do “something” in the face of a wreck site’s deterioration, say the salvors, than do nothing and face losing entire sites to the ocean—and the media and public alike tend to agree. The fact that most wreck sites are stable and not at risk is rarely mentioned, but this is a “public relations” issue for the archaeologists, not an ethical debate per se.

Stepping aside from these ethical debates, it is the first issue, the ambiguous legal status of much of the marine zone, that is ultimately more important. Clarification of the legal status of marine sites (and the responsibilities of nations as regards these) would solve many of the problems currently experienced, bringing maritime heritage in line with existing heritage protection on land. The present circumstances are, as indicated, extremely complicated. The key document is the UN Convention on the Law of the Sea, the vast international agreement that resulted from a series of meetings that took place between 1973 and 1982. The UN convention is a product of its times, a document designed to help establish free access to and across the oceans of the world in a period of global instability. It finally established under international law the principles that nations have full legal control over their “territorial waters” (from mean low water out to 12 nautical miles offshore); partial legal control over their “exclusive economic zone” (from 12 to 200 nautical miles offshore); and no real legal rights of control in “international waters” (beyond the 200 nautical mile limit). The result is that nations can exercise considerable legal (including historic site) control broadly equivalent to that on land in the key territorial sea zone, but extremely limited legal control beyond this. Such rights and responsibilities are particularly ambiguous in the crucial exclusive economic zone where most marine zone development now occurs and where wrecks like the Mercedes and Victory are often discovered.

Debates surrounding the validity of the Unesco convention have limited applicability in relation to UN Convention on the Law of the Sea: like it or not, decisions about activity outside territorial sea zones are ultimately a matter of law, not ethics, and archaeologists are as bound by the law as anyone else. Demagoguery benefits no one under such circumstances. Rather, if this legal situation is to change to better protect historic sites (as most archaeologists argue that it ought), then archaeologists have to persuade politicians to discuss this issue on the international stage, implementing reforms to the legal system to extend existing protection of historic sites out into the exclusive economic zone and ultimately into international waters. Such political action will only come when public interest is fully and loudly focused in support of archaeologists. But right now, public and media attention alike is generally more behind the salvors, who tend to have a better grasp of “message politics” [conveying ideas in a media savvy way]. Partly, this is a problem of the public misunderstanding of the law. The popular assumption is that anything recovered from the sea is “finders keepers” (which it is not: the 1995 Merchant Shipping Act in the UK alone makes this clear). But professional salvors have also done a very good job of romanticising the commercial exploitation of historic shipwrecks through the media and travelling museum displays, for example through the Discovery Channel’s 2009 TV show “Treasure Quest” or the phenomenally successful RMS Titanic Inc’s global touring exhibition of objects recovered from that wreck site.

Concerted efforts by archaeologists to improve popular and political support for international legal reform are well under way—for example, domestically through the UK’s Joint Nautical Archaeology Policy Committee and internationally through the Advisory Council on Underwater Archaeology—but much more needs to be done. The better protection of historic sites in this context is part of the broader protection of the marine environment, in which crucial lessons are being learnt from the environmental lobby in terms of “message politics”. For example, thanks to organisations like the World Wildlife Fund, few people now dispute the need to protect marine biodiversity in terms of both its innate value and also its economic sustainability.

The historic environment lobby needs to make a similarly persuasive argument that marine historic sites are just as precious and vulnerable as marine wildlife, that such historic sites should not be subject to unregulated exploitation, and that the sustainable stewardship of these sites is central to both their long-term protection and our long-term communal enjoyment of them. The writer is a senior lecturer at the Institute of Archaeology, University College London. He was the chairman of the Third International Congress on Underwater Archaeology, which was held in London in 2008

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15 Mar 12
15:17 CET


It is, of course, worth mentioning the fact that wrecks such as RMS Titanic wouldn't fall within the 2001 Convention in any event (even if the US and UK were signatories) because of its 100-year longstop. Taking Titanic as an example, the US 4th Circuit Court of Appeals has in August last year put in place a potentially very effective mix of restrictive covenants which might cut a balance between commercial salvage rights and cultural heritage preservation. I suggest that this middle way might be more attractive given that there are some nations that will never ratify the 2001 Convention. I think that we need to think in more creative terms, perhaps, than the 2001 Convention permits.

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