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Where underwater treasure-hunters go, legislation must follow: Unesco's proposal explained

Unesco is calling for a global treaty to prevent commercial interests from destroying shipwrecks found in international waters

Technology has at last provided the tools to unlock archaeology’s final frontier. Conquering the obstacles to explore and work in the deep ocean, through the development of remote sensing and recovery techniques, has provided access to uncounted shipwrecks from all eras of history. But commercial interests have dictated the past decade of deep water shipwreck research and with no comprehensive legal regime in international waters that protects underwater sites, there is a growing risk that the rich record of the past that lies at the bottom of the ocean could be frittered away by treasure-hunters seeking fast money.

At the beginning of July, governmental experts from around the world, meet in Paris to debate the draft of a proposed global treaty drawn up by Unesco, the United Nations cultural watchdog. It calls for the regulation of work on sites in international waters and the prohibition of the trade in artifacts salvaged for profit.

The issue of protecting and preserving shipwrecks has increasingly dominated the discussions of the archaeological community, maritime museums, and the world at large.

While various nations have taken steps to protect, preserve and manage historic wrecks within their territorial waters, the same has not been the case for shipwrecks in international waters.

And with no international legal barriers, highly sophisticated and well-funded multinational corporations seeking specific shipwrecks for the booty they may contain, have prospered. Treasure-hunters, or salvors as they prefer to be called, usually profit not through the sale of valuable artefacts but by selling shares in limited partnerships to the public.

The search is on for the Santa Rosa, one of the mightiest ships in colonial Portugal’s fleet, which set sail from Brazil in August 1726 and sank a few days later following a gun-powder explosion. It was reportedly carrying five tons of gold. For the last two years, Odyssey, a Florida-based company has been sweeping the ocean bed using high-tech equipment such as a $40 million low-frequency sonar used by the US Navy to hunt for lost missiles. Odyssey’s search has been costly, controversial, and until very recently, secret. If the gold is discovered, it seems likely that Odyssey and its 300,000 shareholders will reap most of the rewards, although they will be required to negotiate a salvage agreement with the Brazilian navy.

This search is only the latest in a long string of commercial explorations. To name but one other: in 1987, the Columbus-America Discovery Group, a private consortium from Ohio, discovered the 1857 wreck of the sidewheel steamer Central America off the coast of North Carolina but in international waters. They made headlines with their recovery of gold bullion from the steamer’s $2.1 million cargo.

Extensive scientific excavation is time-consuming and costly. Consequently, salvors’ archaeological efforts are generally limited to recovery of treasure: the remainder is ignored or destroyed.

Ownership of abandoned shipwrecks in international waters has been granted to salvors by US courts on the basis of “finders-keepers”. Such grants may be contested by other countries and other would-be salvors.

Some salvors will, where possible, trace a ship’s original owners or their heirs and forge an agreement with them; others do not. Naval shipwrecks are a general exception to the rule.

Archaeologists that collaborate with treasure-hunters increasingly risk professional censure, and so do museums. In 1994 the National Maritime Museum in London came under general attack from the museum community for mounting an exhibition of artefacts from Titanic. In a face-saving gesture, the museum organised conferences in 1995 and 1996 on the protection of historic wrecks in international waters.

The Unesco draft treaty is a long way from becoming law. Following discussion in July, it will be presented at Unesco’s next general conference in October 1999. If it is adopted by the conference and ratified by at least five countries it could become law six months later, but it will only be binding for the countries that ratify it.

Unesco’s proposal

The draft proposal under consideration is structured around two core provisions:

Article 5: Underwater cultural heritage in the Exclusive Economic Zone [200-mile area outside a State’s territorial waters] and on the Continental Shelf [the area immediately adjacent to a State’s coastline before it falls into deep waters]

1. States shall require the notification of any discovery relating to underwater cultural heritage occurring in their exclusive economic zone or on their continental shelf.

2. States may regulate and authorise all activities affecting underwater cultural heritage in the exclusive economic zone and on the continental shelf, in accordance with this Convention and other rules of international law

3. In authorising any such activities, States shall require compliance, at a minimum, with the operative provisions of the Charter1, in particular taking into account the needs of conservation and research, including the need for re-assembly of a dispersed collection, as well as public access, exhibition and education.

4. States may deny authorisation for the conduct of activities affecting underwater cultural heritage having the effect of unjustifiably interfering with the exploitation of their natural resources

5. States shall make punishable all breaches of the terms of the permits authorising the conduct of activities affecting underwater cultural heritage.

[It is the first time that a Convention specifies the right of coastal States to establish their jurisdiction over underwater cultural heritage in these areas.]

Article 7: Prohibition of certain activities by nationals and ships

1. A State shall take such measures as may be necessary to ensure that its nationals and vessels flying its flag do not engage in any activity affecting underwater cultural heritage in a manner inconsistent with the principles of the Charter.

2. Measures to be taken by a State in respect of its nationals and vessels flying its flag shall include, among others, the establishment of regulations:

(a) to prohibit activities affecting underwater cultural heritage in areas where no State exercises its jurisdiction under Article 5 otherwise than in accordance with the terms and conditions of a permit or authorisation granted in compliance with the provisions of the Charter;

(b) to ensure that they do not engage in activities affecting underwater cultural heritage within the exclusive economic zone or continental shelf of a State which exercises its jurisdiction under Article 5, in a manner contrary to the laws and regulations of that State.

International Charter on the Protection and Management of Underwater Cultural Heritage, ratified by the General Assembly in Sofia, Bulgaria October 1996

Originally appeared in The Art Newspaper as 'Where treasure-hunters go, legislation must follow'