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Unesco adopts a new Convention on the Protection of the Underwater Cultural Heritage to protect shipwrecks lying in international waters

However, the US and UK say the it conflicts with existing maritime legislation and Russia, Norway, Turkey, and Venezuela vote no

Klaus Keppler is looking for gold. In October Sea Explorer AG, the company run by the 62-year old German salvor, completed its first recovery operation on the wreck of The Cimbria, a German passenger liner that sank in 1883 after colliding with a British vessel. Over 430 people died in the accident.

The Cimbria now lies in international waters some 30 miles northwest of the German island of Borkum. From August to October Mr Keppler’s company spent DM2 million ($900,000) diving on The Cimbria and recovering porcelain from its cargo hold. Speaking to The Art Newspaper, Mr Keppler said that the recovery operation would start again in May 2002. “We are hoping to find between 30 to 50 tonnes of porcelain,” he said. “The further we go into the wreck, the more undamaged porcelain we find.” The porcelain on board comes from a variety of German manufacturers including Meissen, Schwalb, and C&M Carlsbad. Once it has been conserved, Mr Keppler says he intends to sell it at auction and hopes to raise enough money to offset the salvage costs.

The Cimbria is also thought to have been carrying a safe full of gold coins which belonged to Moritz Strauss, a German toy manufacturer on his way to New York.

“If we find the gold, we expect to negotiate an arrangement with Mr Strauss’s family,” says Mr Keppler. “The money does not belong to us, but we are hoping to be awarded a part of it.”

Because The Cimbria rests outside Germany’s territorial seas, it is not protected by German legislation and there is currently no comprehensive legal regime protecting underwater sites in international waters. There is thus no legal obstacle to prevent Mr Keppler from recovering artefacts from the shipwreck and doing what he likes with them. If a government or individual were to lay claim to the artefacts recovered from The Cimbria, or to the shipwreck itself, they would have to challenge Mr Keppler in a national court.

Archaeologists warn that companies like Sea Explorer AG are primarily interested in making money and that they recover artefacts with little or no regard for scientific excavation, research, publication, and public access to information.

Despite these warnings, the expense of deep-sea recovery work has prompted many governments, including Britain, Cuba and several Southeast Asian countries to work with private salvage companies, a collaboration many archaeologists find unacceptable.

Mr Keppler’s company does employ archaeologists who keep records of the wreck and the places where artefacts are recovered. Mr Keppler told The Art Newspaper that he is also organising a public exhibition in Hamburg (opening May 2002) which will tell the story of The Cimbria and present a selection of artefacts recovered from the wreck.

But Mr Keppler’s efforts are not enough, say archaeologists. “We have yet to see one commercial exploration which has done archaeological excavations that fully satisfy us,” says Robert Grenier, Chairman of the International Scientific Committee on Underwater Cultural Heritage with the International Council of Monuments and Sites.

A new convention

To protect shipwrecks around the world, Unesco, the United Nations’ cultural arm, has now adopted a new Convention on the Protection of the Underwater Cultural Heritage.

On 2 November, 87 countries voted in favour of the convention at Unesco’s General Conference, enough to secure the document’s adoption. These countries include Argentina, Australia, Canada, China, Egypt, Italy, Japan, Mexico, New Zealand, Portugal, South Korea, South Africa and Spain. Four countries (Russia, Norway, Turkey and Venezuela) voted against the convention, while the countries that abstained from voting include Britain, France, Germany, the Netherlands, Israel, Brazil, Colombia, Greece, Hungary, and Saudi Arabia, among others.

Because the United States is not a member of Unesco, the American delegation was not entitled to vote, although the US could ratify the convention. But in a statement to the conference, the American delegation said that the US “could not accept” the convention because of “objections to several key provisions,” implying that if the US delegates had been entitled to vote they would have abstained or voted against adoption of the convention.

Eleven years in the making, the document represents the first international effort to provide a comprehensive legal framework for the protection of underwater sites, including shipwrecks, in both territorial and international waters. It sets out the rights and responsibilities of governments in exploring, protecting, and managing underwater cultural resources.

The Unesco Convention defines underwater cultural heritage as “all traces of human existence having a cultural, historical, or archaeological character which have been partially or totally under water, periodically or continuously, for at least 100 years.” In its “Objectives and General Principles” the convention calls upon States to “preserve underwater cultural heritage for the benefit of humanity,” and it points to “the preservation in situ of underwater cultural heritage” as the “first option before allowing or engaging in any activities directed at this heritage.”

Despite this cautionary stance, the convention stipulates that it is up to individual governments to prohibit or authorise salvage activity provided the work is carried out in conformity with the principles of the convention.

Will it work?

The Unesco convention is only binding upon the nationals and vessels of States that accede to it. For it to be effective it would need the support of certain key countries, including the US, where much of the salvage industry is based, and the UK, where much of the art market is based and many salvage companies also operate.

But in statements made to the General Conference, both the US and UK delegations said that they could not support the convention as it now stands.

One of the problems for both countries is the issue of Sovereign Immunity over State vessels and a perceived conflict between the Unesco Convention and the United Nations Convention on the Law of the Sea (UNCLOS) which came into force in 1994 and currently has 136 parties to it. UNCLOS provides a framework for the allocation of jurisdiction, rights, and duties among States that carefully balances the interests of countries in controlling activities off their own coasts with the interests of all countries in protecting the freedom to use ocean spaces. It sets out various maritime zones and establishes the balance of interests for each of these areas with the rights of Coastal States gradually decreasing as the distance from the shore increases.

UNCLOS also reiterates the principle of Sovereign Immunity by which Flag States retain control over sunken warships, submarines, and aircraft unless they expressly abandon them.

Speaking to The Art Newspaper, a British official suggested that the Unesco Convention appears to unbalance that principle by granting increased rights to Coastal States over foreign State vessels.

For countries with a historically strong maritime presence, the issue of Sovereign Immunity is significant, says James Nafziger, Professor of Law at Willamette University and a Rapporteur for the International Law Association, the organisation that in 1994 completed drafting a convention on the underwater cultural heritage on which the Unesco Convention is based.

Speaking to The Art Newspaper, Professor Nafziger said, “Although the convention requires Coastal States to notify Flag States and certain other States of the discovery of State vessels and aircraft, these often contain the remains of military and other personnel. The Flag States are concerned about their lack of control over tampering with the bones of their dead and are also concerned with protecting the technology aboard their military vessels,” said Professor Nafziger.

The Unesco convention states that: “A State Party in whose exclusive economic zone [up to 200 miles from the coast] or on whose continental shelf underwater cultural heritage is located has the right to prohibit or authorise any activity directed at such heritage,” but must consult and collaborate with Flag States and other State Parties. However, when an underwater site is judged to be in “immediate danger” from looting or other activities, a Coastal State is granted the right to take action to protect sunken vessels belonging to other Flag States if necessary “prior to consultations” with those States.

In its statement to the General Conference the UK delegation said, “The current text [of the Unesco Convention] erodes the fundamental principles of customary international law, codified in UNCLOS, of Sovereign Immunity which is retained by a State’s warships and vessels and aircraft used for non-commercial service until expressly abandoned by that State. The text purports to alter the fine balance between the equal, but conflicting, rights of Coastal and Flag States, carefully negotiated in UNCLOS, in a way that is unacceptable to the United Kingdom.”

The US statement also points to the status of “warships and the relationship of the convention to UNCLOS” as causing problems.

Another problem with the convention is the seemingly related but separate issue of jurisdiction. Maritime powers such as the US, Russia, and several Western European countries have traditionally argued in favour of maximum freedom and minimal jurisdiction in international waters. Speaking to The Art Newspaper, officials from many of these countries said that the obligation on Coastal States to monitor sites up to 200 miles from their coast is in conflict with the stipulations of UNCLOS and will disrupt the balance of interests carefully negotiated in that law.

However Professor Nafziger says that he believes the Unesco Convention does conform to UNCLOS and simply develops provisions in it to govern the underwater cultural heritage.

The question of whether the Unesco Convention does or does not conflict with UNCLOS remains open to interpretation. What is clear is that countries that have acceded to the convention could now find themselves in conflict with countries that have not. For example, let us imagine that a private US vessel were engaged in the recovery of artefacts from a shipwreck in international waters but within 200 miles of the coast of Italy (which voted in favour of the convention). Under the terms of the convention, Italy would be obliged to exert authority over the US vessel, but the US would not recognise Italy’s right to do so. “This will create a legal impasse,” says Professor Nafziger.

The rules of conduct

While some archaeologists do not object to commercial salvage work in theory, many feel that the way artefacts are recovered by private companies is unacceptable. The Unesco Convention sets out principles which will regulate all the underwater archaeology and salvage work conducted in the countries that accede to it.

The rules state that although “in situ preservation” should be “the first option,” when artefacts are recovered “a project design” must be drawn up which will include “a conservation programme for artefacts” and “a site management and maintenance policy.” Enough funding must be secured to ensure the completion of the project before work begins, and proper documentation of the recovery work is essential. Artefacts that are removed from a wreck, “shall, as far as possible, be kept together and intact as a collection in a manner that is available for professional and public access.”

The guidelines are too restrictive and are unworkable, says the UK. In their statement to the General Conference, the UK delegation said: “The procedures for the protection of underwater archaeology adopted in the Annex are those which are already followed by the United Kingdom with regard to the designation of wreck sites within its territorial sea and internal waters. However, the text obliges signatory States to extend the same very high standards of protection to all underwater archaeology over 100 years old. It is estimated that there are probably about 10,000 wreck sites on the seabed under the United Kingdom’s territorial sea and it would neither be possible nor desirable to extend legal protection to all of them. The United Kingdom believes that it is better to focus its efforts and resources on protecting the most important and unique examples of underwater cultural heritage. It would simply be impossible to enforce the application of the rules... to every one of the thousands of wreck sites.”

What lies ahead?

The commercial sector estimates that there are some three million undiscovered shipwrecks scattered around the world. The proliferation of private salvage companies will lead to increasingly spectacular discoveries. Governments strapped for cash will enter into more and more collaborations with salvors, in many cases granting private companies the rights to sell artefacts recovered from vessels bearing their flag or lying within their jurisdiction.

Auction houses will be quick to encourage the creation of a new market for works pulled from the sea. “They will increasingly try to pitch their marketing towards as broad an audience as possible because it is very unlikely that the established collector market will ever be big enough to absorb the contents of a complete cargo,” says Colin Sheaf, head of Asian Art at Bonham’s, London.

“The real skill in marketing a shipwreck sale is to convince the public that it is a one-off, unique event and that they will never have the chance to buy this particular piece of history again,” says Mr Sheaf who has extensive experience selling shipwreck cargoes.

As the auction houses capitalise on this new market, archaeologists will become increasingly vociferous in their call for countries to accede to the Unesco Convention. More and more wrecks will be claimed by several different parties, including countries, and an increasing number of disputes will be fought out in court. The management of shipwrecks is set to become the most hotly contested area of international cultural legislation in the years to come.

“The negotiations [over the drafting of the convention] were ultimately a matter of different values and of viewpoints that are almost impossible to reconcile. But at least now we have a very useful legal framework and a basis for ongoing diplomatic negotiation. It is hard to ignore that framework, even if it is binding only on Parties to the Convention,” says Professor Nafziger.

Originally appeared in The Art Newspaper as 'Who owns the watery past?'