Greg Stemm explains what the new United Nations Convention means for underwater contractors.

On November 4, 2001, the UNESCO General Conference adopted the UNESCO Convention for the Protection of Underwater Cultural Heritage (CPUCH). Thus concluded four years of complex negotiations that purported to develop a regime that would protect the world's underwater cultural resources. Whether the Convention will achieve that goal is yet to be seen, but its adoption will have an effect on the way we deal with underwater archaeology throughout the world.

The idea for this Convention materialized in the International Law Association in 1994. The first draft was prepared by a group of international lawyers that had a real interest in preventing the rape and pillage of the world's underwater cultural heritage (UCH). The draft Convention was taken on by UNESCO in 1997, and Paris has been host to five subsequent meetings of hundreds of archaeologists, lawyers, military representatives, cultural resource managers, and politicians.

The Final Vote
At the final vote, there were 87 affirmative votes, four against, and 15 abstentions. The countries that voted against the Convention were Norway, Russia, Venezuela and Turkey. Abstentions included Belarus, Brazil, Colombia, Czech Republic, France, Germany, Greece, Iceland, Israel, Netherlands, Sweden, Paraguay, Switzerland, Uruguay and the United Kingdom.

Of course, the US could not vote because we are not a member of UNESCO. However, as an observer, we made a very strong statement against the Convention.

Abstentions are not as neutral as one might think. They are the politically correct way to say that you will not be likely to sign the Convention. Some countries, such as Colombia, Uruguay and Greece, abstained because they did not feel that the Convention went far enough in granting the Coastal State control over their UCH. Most of the rest felt that the Convention went too far. France and the United Kingdom in particular made very strong statements in opposition to the Convention.

The number of developed countries that are not happy with the Convention does not bode well for its widespread acceptance. During September and October, numerous attempts were initiated to broker a compromise that could bring the US and the majority of European countries into the Convention. However, these negotiations went nowhere and the draft Convention which was sent to UNESCO contained many issues which will likely prevent countries like the United States, the United Kingdom, Russia, and France from becoming signatories.

Since the Convention will only apply to signatories, ignoring the interests of these countries that possess blue water navies and significant offshore industries will mean that the Convention will not apply to the nations that possess the vast majority of technological access to the world's oceans.

The Convention will undoubtedly be adopted by many developing nations that are provided with offshore services by ADC members, so it is important to understand how it might apply when encountering UCH under this regime. This doesn't mean you have to be looking for shipwrecks, it could also apply when your cable route survey or pipeline encounters a handful of amphorae on the seabed, or when you are contracted to dredge a harbor or renovate a quay. Simply ignoring some deteriorated wooden ribs lying in the path of your dredge might now result in your ship being impounded in some countries.

The Convention's Rules
The Convention is divided into two different sections. The first is composed of the Articles of the Convention itself, which define the regime, what it protects, and the jurisdictional issues. This portion of the Convention was covered in my column in the November/December 2001 issue of UnderWater Magazine.

The second portion contains the Rules of the Annex - the set of regulations that will govern activities directed at Underwater Cultural Heritage. They evolved from the International Council on Monuments and Sites (ICOMOS) Charter for the Protection of Underwater Cultural Heritage, and were added to the original ILA draft of the Convention as protocols for dealing with UCH.

While the ICOMOS Charter provided a reasonable group of standards and Code of Ethics, it was never envisioned as law, and therefore was difficult to convert into legally binding principles. There is a decided bias against including private sector in the management of UCH in the ICOMOS Charter, and not surprisingly, this carried through to the Rules of the Convention. This was sold as a necessity to prevent treasure hunters and sport divers from indiscriminately looting underwater sites, but went much further.

Some of the more interesting Rules, and my assessment of each are as follows:

Rule 2: The commercial exploitation of underwater cultural heritage for trade or speculation or its irretrievable dispersal is fundamentally incompatible with the protection and proper management of underwater cultural heritage. Underwater cultural heritage shall not be traded, sold, bought or bartered as commercial goods.

This rule was hotly contested, and saw stiff resistance from the US and UK, who both consider the private sector to be a legitimate and bona fide constituency of the shipwreck resource. After considerable debate the following two paragraphs were added to this Rule:

This Rule cannot be interpreted as preventing:
A) the provision of professional archaeological services or necessary services incidental thereto whose nature and purpose are in full conformity with this Convention and are subject to the authorisation of the competent authorities;
B) the deposition of underwater cultural heritage, recovered in the course of a research project in conformity with this Convention, provided such deposition does not prejudice the scientific or cultural interest or integrity of the recovered material or result in its irretrievable dispersal; is in accordance with the provisions of Rules 33 and 34; and is subject to the authorisation of the competent authorities.

On one hand, the first paragraph is clear that UCH should not be traded as "commercial goods," but that is not defined anywhere. The sale or trade of an antiquity as a cultural artifact, as opposed to "commercial goods," can be interpreted as requiring that the piece may be sold or traded, but only with appropriate documentation showing that it was acquired in a bona fide transaction or after a proper archaeological excavation.

This conditional prohibition is also subject to paragraphs A and B. Both of these are quite clear in their intent to modify the first paragraph of the rule. In Paragraph A, it states that the prohibitions in the Rule cannot be interpreted as preventing the "provision of professional archaeological services or necessary services thereto" - as long as they are in conformity with the Convention.

Taken together, this would appear to mean that artifacts can be traded, bought, or bartered if a prohibition would prevent a legitimate archaeological excavation from taking place, or prevent provision of necessary services. In some countries, and on some sites (notably expensive deep ocean sites), there are projects that can only be funded if the sale or trade of the cargoes of the shipwrecks are allowed to take place. However, the Convention is quite clear that the recovery would have to take place in compliance with the rest of the Convention and the Rules.

In Paragraph B there is a second exception to the prohibition on sale and trade, and it is a provision for the "deposition" of UCH, provided that this does not take place in a manner which jeopardizes the "scientific or cultural interest or integrity of the recovered material or result in its irretrievable dispersal." It must also be in accordance with Rules 33 and 34, but we will address those issues later.

During negotiations, this provision for "deposition" was hotly contested, as it was seen to allow the distribution and sale of artifacts, especially to museums and institutions, but also to collectors. One delegate even went so far as to proclaim that deposition "would certainly include depositing artifacts on a collector's mantel."

This paragraph is also careful to provide that artifacts that may be subject to "deposition" do not end up irretrievably dispersed. In other words, artifacts may be traded, or even owned privately, but must be available for study.

This latter point is also addressed in Rule 33 in the requirement to keep the collection together, which is qualified by "as far as possible." This is an important condition that will have to be addressed in order to continue the sale or trade of shipwreck artifacts. Both these requirements can be met by development of an artifact title and documentation database. This would provide a tracking mechanism that would allow archaeologists and scientists to locate artifacts dispersed through different museums or private hands for further study.

I believe that the totality of the wording in Rule 2 was carefully drafted to allow countries to provide for sale or trade of artifacts to either satisfy their own internal laws or, where needed, for funding archaeological projects, especially when artifacts have relatively little archaeological significance. In my opinion, this rule will not prevent private sector shipwreck exploration, but will require stringently supervised planning and techniques for any operations involving shipwrecks of 100 years of age or older.

Rule 9: Prior to any activity directed at underwater cultural heritage, a project design for the activity shall be developed and submitted to the competent authorities for authorization and appropriate peer review.

While I think this is a good provision in theory, it will be interesting to see how the archaeological community will deal with the requirement for every research design to receive peer review. Some well-known and experienced underwater archaeologists worry that, to some extent, development of a proper research design can only take place during a project. Before an excavation takes place, you can only guess at the conditions of a site.

Rule 17: Except in cases of emergency to protect underwater cultural heritage, an adequate funding base shall be assured in advance of any activity, sufficient to complete all stages of the project design, including conservation, documentation and curation of recovered artifacts, and report preparation and dissemination.

Rule 18: The project design shall exhibit demonstrated ability, such as securing a bond, to fund the project through to completion.

These two rules are interesting because I believe that they will serve to cause extensive problems for the academic and institutional archaeological community. Funding is always a problem in the non-profit and government arena. Creating a regime that requires assurance of all funding in advance of a project will make it difficult, if not impossible, to get projects off the ground. While not obvious, a case can be made that the requirement of funding to complete curation of all artifacts means funding for not only the conservation and documentation, but presumably storage and maintenance in perpetuity. In an informal survey of underwater archaeologists, there appears to be a general feeling that very few, if any, institutions can meet this rule.

This might produce the unintended, but welcome, consequence of creating an increased reliance on the private sector for funds. Unlike public institutions, responsible private businesses must typically identify funds prior to beginning a project. Demonstrating financial responsibility and securing bonds are standard operating procedure for professional underwater contracting firms. This is especially important in the case of deepwater projects, where the budgets run into millions of dollars. Few institutions will be able to provide the financial means to undertake these expeditions without the private sector's assistance.

Rule 33: The project archives, including any underwater cultural heritage removed and a copy of all supporting documentation shall, as far as possible, be kept together and intact as a collection in a manner that is available for professional and public access as well as for the curation of the archives. This should be done as rapidly as possible and in any case not later than 10 years from the completion of the project, in so far as may be compatible with conservation of the underwater cultural heritage.

There are two parts to this rule. The first, which suggests that a collection should be kept intact "as far as possible," is the codification of a reasonable principle. Ideally, I suppose that an argument could be made that all UCH would be kept together in a collection forever just in case someone wanted to study it. Unfortunately, the potential burden this places on the institutional and museum community is staggering. It has been estimated that there are at least 3,000,000 shipwrecks throughout the world that would be considered UCH under this Convention. That number is considered a baseline, and the actual figure could be much higher.

The challenge is the Convention's failure to acknowledge any significant criteria for keeping these collections together. Museums and institutions are already bursting at the seams. Archaeological institutions are going to have to find new places and creative methods for storing collections and archives in perpetuity, especially in light of Rule 17, which requires funding to be available for the ultimate conservation of the project archive (supposedly in perpetuity) before beginning a project.

As previously mentioned, the ideal solution may very well be to maintain collections in the hands of private collectors and spread throughout different museums, as well as in public and academic institutions. The key will be the development of a detailed documentation and tracking mechanism so that archaeologists and historians may study the pieces in their different locations. It may not be the perfect solution, but it is certainly more convenient to study UCH that way than beneath a layer of sediment in the deep ocean.

While this may sound difficult to accomplish, consider that the study of the art of the great masters has not suffered through private ownership. Rembrandts, Renoirs, or Vermeers are often in private hands and cared for with attention that would be difficult to fund entirely through public money.

Great art and antiquities are made available for study because the collectors are subject to the most dependable motivation - enlightened self-interest and love of the art itself. The objects are made more valuable and more interesting through study, and there is no reason to believe that the same would not hold true for UCH in private hands.

The second half of this Rule suggests that the project archive be made available in not less than 10 years. Perhaps this will have the effect of smoking data off dusty institutional shelves that tend to lie undisturbed for years after the fieldwork is completed.

Rule 34: The project archives shall be managed according to international professional standards, and subject to the authorization of the competent authorities.

Project archives include everything from the project documentation to artifacts, so the ultimate disposition of collections will hinge on this article. After significant debate, this rule was left open to the international professional standards chosen by each state - there are no specific standards referenced. This will open the door for reasonable and practical standards to be developed by responsible organizations and governments. To some extent the development of these standards can be used to bring some practical and reasonable order to some of the more perplexing contradictions in the Convention.

Far-Reaching Effects
In the final analysis, countries that wish to allow and promote legitimate private sector access to shipwrecks will still be able to do so. Countries that want to prevent private sector access can do so now anyway, so this will not really change things in those countries. In my opinion, the group that will be most profoundly affected by this Convention is the archaeological community. The Rules are much more stringent than most academic or non-profit organizations are used to. Fiscally responsible private sector archaeological contractors will likely be better able to adapt to the financial and accountability requirements of the Convention.

The issues addressed here are some of the most problematic and interesting that will apply to activities directed at shipwrecks. While they may not seem to affect your company's activities, taken together with the Convention's Articles for reporting and protecting UCH, they provide a complex regime that has the potential to affect literally all offshore activities, even those that typically have nothing to do with shipwrecks.

While the Convention may have a minimal effect if you are domiciled in a country that does not become a signatory, it could have significant repercussions if you are contracted to engage in operations in countries that are signatories, or if your ship is flagged in a country that does become a signatory. There is even a good argument to be made that crewmembers that are citizens of signatory countries have special obligations for reporting UCH, even if they are under contract on a ship flying the flag of a non-signatory country.

If this Convention does become widely adopted, I predict that there will be countries that provide Flags of Convenience that will guarantee that they will not sign the Convention, thus protecting vessels from the UNESCO Convention's regulations. I'm surprised that Liberia, Panama, Bahamas, Vanuatu and other countries that have significant industries built on providing flags for work vessels have not already taken the lead on this initiative.

If you operate foreign flag vessels, it might be a good idea to seek advice from that country to find out if they have plans to sign the Convention. My guess is that they probably won't even know what your are referring to, so it will be up to you to let them know the potential impact it might have on ships flying their flag - and whether it will mean that you will be taking your business elsewhere.

In future articles, I'll keep you posted on legal developments that will have special impacts on the offshore industry. In the mean time, I encourage you to get a copy of the Convention and read it carefully. It may affect you more than you think. UW

Odyssey Marine Exploration's Greg Stemm, founder and past-President of the Professional Shipwreck Explorers Association, hosts this column in each issue of UnderWater. These opinions are his alone, and do not reflect those of the US UNESCO delegation. See the Convention at shipwreck.net under Links. Contact Greg at: email Greg Stemm.

UnderWater Magazine is the bimonthly journal of the Association of Diving Contractors International, Inc. It is published by Doyle Publishing Company for the commercial diving, ROV, and underwater industries. Entire contents © 1993 - 1999 Doyle Publishing Company. Reproduction in whole or in part without express written permission is prohibited.

©2002 Greg Stemm