International Underwater Cultural Heritage Governance: Past Doubts and Current Challenges (original) (raw)

Abstract

The international legal regime aimed at the protection and governance of underwater cultural heritage is facing substantial strife. Unauthorized salvage and looting are a continuing threat. Additional challenges include disputes between post-colonies and post-colonial powers over title to sunken vessels, lack of a global policy for the protection of underwater gravesites, and the exploitation of underwater cultural heritage as a means to claim disputed territory. Considerable time has passed since the signing (2001) and entry into force (2009) of the UNESCO Convention on the Protection of the Underwater Cultural Heritage. Notable maritime powers refused to sign the Convention because they were concerned that it would erode international law principles, particularly marine jurisdiction and state-owned vessels' immunity. The article revisits the maritime powers' reservations and maintains that in practice these concerns did not materialize. It then demonstrates that the Convention is well suited to facing the current challenges to international underwater cultural heritage governance.

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References (69)

  1. Id.; see also Jeremy Page, Chinese Territorial Strife Hits Archaeology, WALL ST. J. (Dec. 2, 2013), http://www.wsj.com/articles/SB10001424052702304470504579164873258159410.
  2. Jonathan Watts & Stephen Burgen, Holy Grail of Shipwrecks Caught in Three-Way Court
  3. Battle, GUARDIAN (Dec. 6, 2015), http://www.theguardian.com/world/2015/dec/06/ holy-grail-of- shipwrecks-in-three-way-court-battle;
  4. Willie Drye, Treasure on Sunken Spanish Galleon Could Be Biggest Ever, NATI'L GEOGRAPHIC (Dec. 9, 2015), http://news.nationalgeographic.com/2015/12/151209-spanish-shipwreck-billion-treasure- archaeology/;
  5. Corey Charlton, Hands off our treasure! Spain says it holds the rights to galleon the San Jose -and its $1bn worth of gold coins -found in Colombian waters 300 years after it sank, DAILY MAIL (Dec. 8, 2015), http://www.dailymail.co.uk/news/article-3351250/Hands-treasure-Spain-says- holds-rights-galleon-San-Jose-1bn-worth-gold-coins-Colombian-waters-300-years- sank.html#ixzz4Hd6PFg9h.
  6. SARAH DROMGOOLE, UNDERWATER CULTURAL HERITAGE AND INTERNATIONAL LAW 2- 7 (2013);
  7. CRAIG FORREST, INTERNATIONAL LAW AND THE PROTECTION OF CULTURAL HERITAGE 289-92 (2010).
  8. The UNESCO Convention on the Protection of the Underwater Cultural Heritage, Nov. 6, 2001, 2562 U.N.T.S. 3 [hereinafter The UNESCO Convention].
  9. David Parham & Michael Williams, An outline of the nature of the threat to Underwater Cultural Heritage in International Waters, in PROTECTION OF UNDERWATER CULTURAL HERITAGE IN INTERNATIONAL WATERS supra note 8, at 5, 9; see also Ole Varmer, Closing the Gap in the Law Protecting Underwater Cultural Heritage on the Outer Continental Shelf, 33 STAN. ENVT'L L. J. 215, 255 (2014) (contending that while several U.S. laws were primarily enacted to protect terrestrial heritage, some have been applied to marine heritage).
  10. DROMGOOLE, supra note 5, at 2-7.
  11. I acknowledge that the U.S. courts' decisions have relatively little authority in international law. Notwithstanding, they still are landmark decisions. The courts set a jurisdictional standard for immunity of sunken state vessels, which will, presumably, at the very least be a reference point for future courts and litigants.
  12. A notable example is the agreement for the protection of the Titanic: Agreement Concerning the Shipwrecked Vessel RMS Titanic, Can.-Fr.-U.K.-U.S., Nov. 6, 2003, http://www.gc.noaa.gov/documents/titanic-agreement.pdf.
  13. C.f. ALESSANDRO CHECHI, THE SETTLEMENT OF INTERNATIONAL CULTURAL HERITAGE DISPUTES 36 (2014) (observing that with regard to the protection of cultural heritage, we are witnessing a growing global consensus). 102. See, e.g., UNESCO's Database of National Heritage Laws, http://www.unesco.org/new/en/culture/themes/dynamic-content-single- view/news/unesco_database_of_national_cultural_heritage_laws_update/#.VnScUhUrLIU; see also THE PROTECTION OF THE UNDERWATER CULTURAL HERITAGE: NATIONAL PERSPECTIVES IN LIGHT OF THE UNESCO CONVENTION 2001, supra note 77 (listing different countries and their underwater cultural heritage laws).
  14. See, e.g., UNESCO's Work and Achievements in the Protection of the Underwater Cultural Heritage, http://www.unesco.org/new/en/culture/themes/underwater-cultural- heritage/protection/unescos-work/ (detailing UNESCO's cooperation mechanisms, scientific and technical advisory body, the support it provides to member and non-member states, its educational initiatives, capacity-building efforts, and its outreach and awareness initiatives).
  15. The minutes of the bi-annual meetings can be found here: Meeting of States Parties, THE MANAGEMENT OF THE UNDERWATER CULTURAL HERITAGE IN THE BALTIC SEA REGION (COPUCH), available at http://mg.kpd.lt/LT/7/UNDERWATER-HERITAGE.htm. 111. See, e.g., Accredited Non-Governmental Organizations, UNESCO, http://www.unesco.org/new/en/culture/themes/underwater-cultural-heritage/partners/partners- ngos/accredited-ngos/.
  16. International Committee on the Underwater Cultural Heritage, Vision, Mission, and Strategy, http://icuch.icomos.org/vision-mission-and-strategy/; The Deep Sea Conservation Coalition, http://www.savethehighseas.org/; see also Margaret E. Leshikar-Denton, Cooperation is the Key: We Can Protect the Underwater Cultural Heritage, 5 J. MAR. ARCHEOLOGY 85 (2010).
  17. See, e.g., DROMGOOLE supra note 5, at 140-43. Many interest groups are involved in cultural heritage (underwater, terrestrial, or intangible). These include the international community, international organizations, states, non-state actors, NGO's, museums, and many different private actors. Chechi, supra note 101, at 36-60, provides a detailed account thereof. See also Varmer, supra note 13, at 257.
  18. Parham & Williams, supra note 13, at 9.
  19. UNESCO published a model law, which, it seems, inspired the domestic legislation of several state parties. UNESCO, MODEL FOR A NATIONAL ACT ON THE PROTECTION OF CULTURAL HERITAGE, http://www.unesco.org/new/fileadmin/MULTIMEDIA/HQ/CLT/pdf/UNESCO\_MODEL\_UNDER WATER_ACT_2013.pdf. The homogeneity in national laws regulating underwater cultural heritage across the globe is reflected, inter alia, in the state parties' "state reports" to UNESCO. See UNESCO, COUNTRY REPORTS, http://www.unesco.org/new/en/culture/themes/underwater-cultural- heritage/publications-resources/country-reports/.
  20. Gwenaelle Le Gurun, France, in THE PROTECTION OF THE UNDERWATER CULTURAL HERITAGE, supra note 77, at 59; Maria Clelia Ciciriello, Italy, in LEGAL PROTECTION OF THE UNDERWATER CULTURAL HERITAGE: NATIONAL AND INTERNATIONAL PERSPECTIVES 101 (Sarah Dromgoole ed., 1999);
  21. Tullio Scovazzi, The Protection of Underwater Cultural Heritage: An Italian Perspective, in THE ILLICIT TRAFFIC OF CULTURAL OBJECTS IN THE MEDITERRANEAN, supra note 49, at 75. 135. Odyssey Marine Exploration, Inc. v. The Unidentified Shipwrecked Vessel, Claim to Contents, Artifacts and Cargo by Republic of Peru, Aug. 1, 2008, (Document 120 in The Mercedes Database, supra note 84).
  22. Odyssey Marine Exploration, 675 F. Supp. 2d at 1138; Odyssey Marine Exploration II, 657 F.3d at 1159.
  23. Odyssey Marine Exploration II, 657 F.3d at 1182. The U.S. Supreme Court denied writ of certiorari: Republic of Peru v. The Unidentified Shipwrecked Vessel, 657 F.3d 1159 (11 th Cir. 2011), Cert. Den., Feb. 29, 2012, http://www.supremecourt.gov/Search.aspx?FileName=/docketfiles/11- 1068.htm.
  24. Peru and Bolivia Also Want Their Share of the Gold Found in Spanish Galleon, MERCO PRESS (Dec. 29, 2009), http://en.mercopress.com/2009/12/28/peru-and-bolivia-also-want-their-share- of-the-gold-found-in-spanish-galleon.
  25. Watts & Burgen, supra note 4.
  26. Michael Martinez & Alba Prifti, Colombia Says It Found Spanish Galleon; U.S. Firm Claims Half of Treasure, CNN (Dec. 5, 2015), http://www.cnn.com/2015/12/05/americas/colombia- spanish-galleon-san-jose-found/; Spain Says It Has Rights to Colombian Treasure Ship, BBC NEWS (Dec. 8, 2015), http://www.bbc.com/news/world-latin-america-35036121; Spain, Colombia Still at Odds Over Shipwreck but Agree on One Thing: To Protect It, FOX NEWS (Dec. 14, 2015), http://latino.foxnews.com/latino/politics/2015/12/13/spain-colombia-disagree-on-galleon-wreck-but- will-seek-to-have-it-protected/ [hereinafter FOX NEWS].
  27. FORREST, supra note 5, at 301. The rate of corrosion is rarely less than 0.1. mm per year, often, much faster, as noted by L'Hour. L'Hour, supra note 149, at 101. Changing sea temperatures and weather conditions exacerbate the pace of deterioration. FORREST, supra note 5, at 127. On the deterioration of wood, see NAS GUIDE, supra note 15, at 30-31. 153. Recognition of War Graves, supra note 151, at 127.
  28. See L'Hour, supra note 149, at 122. 155. Id. at 99.
  29. See L'Hour, supra note 149, at 99; Recognition of War Graves, supra note 151, at 127. A recent example involved the World War II Dutch wrecks of HNLMS De Ruyter, HNLMS Java and HNLMS Kortenaer, which were the last resting place of 2,200 people. The wrecks that were laying on the seabed off the coast of Indonesia have presumably been salvaged for metal. Oliver Holmes, Mystery as Wrecks of Three Dutch WWII Ships Vanish from Java Seabed, GUARDIAN (Nov. 16, 2016), https://www.theguardian.com/world/2016/nov/16/three-dutch-second-world-war-shipwrecks-vanish- java-sea-indonesia.
  30. See James Manicom, Maritime Boundary Disputes in East Asia Lessons for the Arctic, 12 INT'L. STUD. PERS. 330 (2011).
  31. See RANDALL H. MCGUIRE, ARCHAEOLOGY AS POLITICAL ACTION (2008);
  32. Don D. Fowler, Uses of the past: Archaeology in the Service of the State, 52 AM. ANTIQUITY, 229 (1987);
  33. Ian C. Glover, National and Political Uses of Archaeology in South-East Asia, 31:89 INDO. MALAY WORLD 16 (2003).
  34. Gillian Macneil, The Northwest Passage: Sovereign Seaway or International Strait? A Reassessment of The Legal Status, 15 DALHOUSIE J. L. & SOC'Y 204, 206 (2006).
  35. Id. at 208-09; Klaus-John Dodds & Alan Hemmings, Polar Oceans Sovereignty and the Contestation of Territorial and Resource Rights, in ROUTLEDGE HANDBOOK OF OCEAN RESOURCES AND MANAGEMENT 576, 578 (Hance D. Smith et al. eds., 2015).
  36. Macneil, supra note 159, at 207; see also ARCTIC MARINE TRANSPORT WORKSHOP (Lawson Brigham & Ben Ellis eds., 2004);
  37. Jeff S. Birchall, Canadian Sovereignty: Climate Change and Politics in the Arctic, 59 ARCTIC, iii (2006) (noting that voyage from Europe to the Orient through the Passage could save up to 35% of the costs compared to voyage through the Panama Canal or Cape Horn).
  38. HMS Erbus was found in 2014, but HMS Terror has not yet been found. See Robin McKie, Uncovering the secrets of John Franklin's doomed voyage, GUARDIAN (Nov. 2, 2014), https://www.theguardian.com/science/2014/nov/02/secrets-of-john-franklins-doomed-voyage-north- west-passage;
  39. Alex Boutilier, Franklin Ship Found in Arctic was HMS Erebus, TORONTO STAR (Oct. 1, 2014), https://www.thestar.com/news/canada/2014/10/01/franklin\_expedition\_ship\_identified\_as\_hms\_ereb us.html; The Franklin Expedition, PARKS CANADA, http://www.pc.gc.ca/eng/culture/franklin/index.aspx; Parks Canada Announces Funding for The Wrecks of HMS Erebus and HMS Terror National Historic Site, PARKS CANADA (Mar. 17, 2016), http://news.gc.ca/web/article-en.do?nid=1041269.
  40. Franklin ship discovery: Stephen Harper's full statement, CBC NEWS (Sept. 09, 2014), http://www.cbc.ca/news/politics/franklin-ship-discovery-stephen-harper-s-full-statement-1.2760566 169. Page, supra note 3 (emphasis added).
  41. Guojia Wenwu Juzhang Li Xiaojie: Nanhai Shuixia Kaogu ke Zhangxian Zhuquan (国家文 物局长励小捷：南海水下考古可彰显主权) [Director of the State Administration of Cultural Heritage Xiaojie Li: South China Sea Underwater Archeology Can Demonstrate Sovereignty], GUANCHAZHE (观察者), (June 7, 2015 9:01 AM), http://www.guancha.cn/local/2015\_06\_07\_322442.shtml.
  42. Tom Parfitt, Vladimir Putin's Greek Urns Claim Earns Ridicule, GUARDIAN (Aug. 12, 2011), http://www.theguardian.com/world/2011/aug/12/vladimir-putin-greek-urns-ridicule; see also Prime Minister Vladimir Putin Visits the Excavation Site of the Ancient Greek City of Phanagoria on Russia's Taman Peninsula, GOV'T OF THE RUSSIAN FED'N (Aug. 10, 2011), http://archive.government.ru/eng/docs/16171/.
  43. Peter Campbell, Could Shipwrecks Lead the World to War?, N.Y. TIMES (Dec. 18, 2015), http://www.nytimes.com/2015/12/19/opinion/could-shipwrecks-lead-the-world-to-war.html?\_r=0.
  44. Id. Indeed, it has been suggested that the Russian contingency plans for the annexation of Crimea have likely been prepared since, at least, the 1990s. See Anton Bebler, Crimea and the Russian- Ukrainian Conflict, 15 ROM. J. EUR. AFF. 35, 39 (2015).
  45. Bebler, supra note 172, at 45; see also Presidential Address to the Federal Assembly, The Kremlin (Dec. 4, 2014), http://en.kremlin.ru/events/president/news/47173.
  46. See Forrest, supra note 61.
  47. On the U.K.'s actions regarding handling the ship, which is classified as a dangerous wreck under the Protection of Wrecks Act 1973 (U.K.) see MAR. & COASTGUARD AGENCY, REPORT ON THE WRECK OF THE SS RICHARD MONTGOMERY (2000), http://webarchive.nationalarchives.gov.uk/20121107103953/http://www.dft.gov.uk/mca/2000\_surve y_report_montgomery.pdf; see also Sam Webb, WWII shipwreck packed bombs that could destroy a Kent port pictured using high-tech sonar, DAILY MIRROR (Jan. 3, 2016), http://www.mirror.co.uk/news/uk-news/wwii-shipwreck-packed-bombs-could-7110626\. 186. Forrest, supra note 61.
  48. Dover Strait U-boat to be moved, BBC NEWS (Aug. 19, 2007, 11:30 AM), http://news.bbc.co.uk/2/hi/uk\_news/england/kent/6953664.stm. For a general discussion on sunken warships that potentially pose threats see Forrest, supra note 61 (noting the Convention's failure to adequately address the issue of potentially dangerous underwater cultural heritage).
  49. Forrest, supra note 61, at 80-81.
  50. Panayotopoulos, supra note 49, at 29, 33.
  51. See supra Part IV. Relatedly, several provisions in the Convention carry some 'constructive' ambiguities. Commentators have suggested that the Convention deliberately includes 'constructive ambiguities' that can be interpreted in different ways, so that as many countries as possible will consider joining the Convention. See Alves, supra note 70, at 49; Dromgoole, supra note 8, at 23, 27. This is not unique to the Convention. Constructive ambiguities can be found in many international arrangements where in order to reach a wide as possible consensus some provisions are intentionally phrased vaguely so that each party can interpret its obligations in a manner it deems favorable. In the upcoming years we are likely to witness some of the constructive ambiguities in the Convention clarified. It can be argued that countries that do not join the Convention will have limited ability to impact the interpretation of the 'constructive ambiguities' in a manner they deem favorable. 191. The UNESCO Convention, supra note 6, art. 1.
  52. A "Western" approach to cultural heritage is typically understood as emphasizing tangible aspects of cultural heritage rather than intangible aspects. Namely, "heritage" is linked to a physical consistency. See Lyndel V. Prott & Patrick J. O'Keefe, 'Cultural Heritage' or 'Cultural Property'?,
  53. INT'L. J. CULTURAL. PROP. 307, 313 (1992) (holding, inter alia, that "[w]hile cultural heritage is seen to merit protection in virtually every community, different relationships to land or objects of ritual in certain societies may be difficult for Western lawyers to understand and accept although they represent concepts of importance in cultural heritage law.");
  54. Marilena Vecco, A Definition of Cultural Heritage: From the Tangible to the Intangible, 11 J. CULTURAL HERITAGE, 321 (2010).
  55. Three quick examples: The Zuni Salt Lake in New-Mexico is sacred to the Native American Zuni tribe. It is home to Ma'lokyattsik'i, the Salt Mother (in the early 2000s, the lake barely escaped destruction due to the suggested construction of a coal mine). See TEST. OF MALCOLM B. BOWEKATY, GOVERNOR OF THE ZUNI TRIBE, THE UNITED STATE SENATE, COMMITTEE ON INDIAN AFFAIRS, (July, 17 2002), available at http://web.archive.org/web/20040718185853/www.sacredland.org/Bowekaty.pdf. See also Indigenous Religious Traditions, COLORADO COLLEGE http://sites.coloradocollege.edu/indigenoustraditions/sacred-lands/zuni-salt-lake/. Lhamo La-tso (or Lha Mo Bla Mtsho), a sacred lake in Tibet, is home to Palden Lhamo (or Dpal Idan Lha Mo), the guardian spirit that protects the lineage of the Dalai Lamas by providing visions that help discover the Dalai Lamas' reincarnations. See ROBERT E. BUSWELL & DONALD S. LOPEZ, THE PRINCETON DICTIONARY OF BUDDHISM 472 (2014). Gosaikunda is a sacred lake in Nepal. Hindu mythology perceives it as the abode of Hindu Deities Lord Shiva and Goddess Gauri. Its holy waters are considered of particular significance during the Gangadashahara and the 'Janai Purnima' (a sacred thread festival). See BIDYA BANMALI PRADHAN ET AL., NEPAL BIODIVERSITY RESOURCE BOOK: PROTECTED AREAS, RAMSAR SITES, AND WORLD HERITAGE SITES 85-86 (2007). An important recent development is the granting of legal personhood status to the Whanganui River in New-Zealand. The river has a strong spiritual meaning to the indigenous Whanganui Iwi people -Kevin Lui, New Zealand's Whanganui River Has Been Granted the Same Legal Rights as a Person, TIME (Mar. 15, 2017), http://time.com/4703251/new-zealand-whanganui-river-wanganui-rights/;
  56. Daniel Melfi, New Zealand grants Whanganui River legal personhood, settles case dating back to 1870s, NATIONAL POST (Mar. 15, 2017), http://news.nationalpost.com/news/world/new-zealand-grants-whanganui- river-legal-personhood-settles-case-dating-back-to-1870s.
  57. Mapping Choices, Carbon, Climate, and Rising Seas, Our Global Legacy, CLIMATE CENTRAL (Nov. 2015), http://sealevel.climatecentral.org/uploads/research/Global-Mapping-Choices- Report.pdf.
  58. Ben Marzeion & Anders Levermann, Loss of Cultural World Heritage and Currently Inhabited Places to Sea-Level Rise, 9 ENVTL. RES. LETTERS 7 (2014).
  59. Cathy Daly, Climate Change and the Conservation of Archaeological Sites: A Review of Impacts Theory, 13 CONSERVATION & MGMT. ARCHAEOLOGICAL SITES 293, 299 (2011);
  60. Elena Perez- Alvaro, Climate Change and Underwater Cultural Heritage: Impacts and Challenges, 21 J. CULTURAL HERITAGE 842 (2016). A famous example is "Jesus' Boat", a 2,000-year-old boat found in the Sea of Galilee in 1986 after several years of drought which saw the lake's water levels at an all- time low, thus exposing this rare boat. After extensive preservation by the Israeli Antiques Authority, it is now on display in a museum. See SHELLEY WACHSMANN, THE SEA OF GALILEE BOAT: A 2000- YEAR-OLD DISCOVERY FROM THE SEA OF LEGENDS (1995);
  61. Orna Cohen, Conservation of the Ancient Boat from the Sea of Galilee, 50 ATIQOT 219 (2005).
  62. Daly, supra note 196, at 299; Perez-Alvaro, supra note 196; Mark Dunkley, The Potential Effects of Oceanic Climate Change on the Management and Curation of Underwater Archaeological Remains, 89 ARCHAEOLOGIST 60, 61-62 (2013).
  63. The UNESCO Convention, supra note 6, art. 17.
  64. Article 17 of the Convention (supra note 6) states as follows: Each State Party shall impose sanctions for violations of measures it has taken to implement this Convention. Sanctions applicable in respect of violations shall be adequate in severity to be effective in securing compliance with this Convention and to discourage violations wherever they occur and shall deprive offenders of the benefit deriving from their illegal activities. States Parties shall cooperate to ensure enforcement of sanctions imposed under this Article. The UNESCO Convention, supra note 6, art. 17.
  65. The UNESCO Convention, supra note 6, art. 25. During the negotiations, some countries suggested that disputes relating to the Convention and its interpretation be brought to the International Court of Justice. This was rejected by other states (apparently due to the interfaces between UNCLOS and the Convention) -Chechi, supra note 101, at 112.
  66. Francesco Francioni, Plurality and Interaction of Legal Orders in the Enforcement of Cultural Heritage Law, in ENFORCING INTERNATIONAL CULTURAL HERITAGE LAW, supra note 74, at 17. 202. Convention on the High Seas, supra note 75.
  67. See Sarah Dromgoole & Craig Forrest, The Nairobi Wreck Removal Convention 2007 and Hazardous Historic Shipwrecks, LLOYD'S MAR. & COM. L. Q. 92 (2011) (suggesting that the Nairobi Convention might be used to guide countries in the removal of wrecks and protection of underwater cultural heritage); see also Jhonnie M. Kern, Wreck Removal and the Nairobi Convention -A Movement Toward a Unified Framework?, 3 FRONTIERS IN MAR. SCI. 1 (2016) (outlining the Nairobi Convention's features and holding that, despite ambiguities, it may prove beneficial to a unified wreck removal regime).
  68. See supra Part II.
  69. The Titanic constitutes a sui generis case in that it has been subject to an ad hoc international agreement. Agreement Concerning the Shipwrecked Vessel RMS Titanic, supra note 100. 206. Convention for the Safeguarding of the Intangible Cultural Heritage, Oct. 17, 2003, 2368