THE UNESCO CONVENTION
ON THE PROTECTION OF UNDERWATER CULTURAL HERITAGE
– A SHARK IN THE DISGUISE OF AN ANGELFISH
by Jack Fullmer, NJCDC 2002
Most people would think that a treaty to
protect underwater cultural heritage would be something you would want to
support. But beware the teeth of a shark! There are provisions in this
treaty that would scare anyone!
SUMMARY
In a nutshell, the treaty defines any shipwreck, plane, vessel, site, or any
trace of human existence which has been partially or totally underwater for at
least a 100 years as "Underwater Cultural Heritage" (UCH). The
treaty applies to any UCH in a country’s contiguous zone (3 to 200 miles)
and the continental shelf, which could be well beyond 200 miles, and
indirectly to its internal waters. It then repeals the "law of salvage
and finds" unless an activity is in full conformance to the treaty and
"Rules."
The treaty dictates that any master of a
boat or resident of a county signing the treaty report the discovery of
underwater cultural heritage to the country in whose contiguous zone or
continental shelf the discovery was made, or in areas beyond. The treaty then
requires a signer country to report any discovery of UCH to the Director
General. The Director General is then to report this find to all signers of
the treaty, any one of which can express an interest in the find based on some
theoretical link. No activity can be directed at that UCH without the
agreement of the consulting countries.
The treaty requires a signer country to
seize UCH in it territory that has been recovered in any manner inconsistent
with the treaty or "Rules." The treaty sets up "Rules" for
any access to and recovery of UCH, which requires that a qualified
professional archaeologist, be present. The Rules do not guarantee public
access, and prohibit UCH from being traded, sold, brought or bartered as
commercial goods.
PROBLEMS
The first very obvious problem with this treaty is that it is treating
shipwrecks (almost all UCH as defined in the ocean would be shipwrecks)
over 100 years old solely as an archaeological resource. Yet
archaeology is a very, very minor use of our shipwreck resources. Probably not
one person in a thousand that visits shipwrecks in the ocean, including
shipwrecks over a hundred years old, is an archaeologist or part of an
archaeological survey.
The primary use of any shipwreck in the
ocean, including 100-year-old shipwrecks, is as a fishery resource. Shipwrecks
attract specific types of fish and are intensively fished by both commercial
and recreational fishermen. Shipwrecks act as reefs in an otherwise barren sea
bottom. A sport diving, recreational fishing and commercial fishing industry
is dependent on our shipwreck reefs. Lobstermen also use our shipwreck
resources. Any management tool that totally ignores the primary use of a
resource in favor of a very, very minor use is a poor management tool indeed.
Shipwrecks are a multi-use resource and should be managed as a multi-use
resource.
Now this wouldn’t be a terrible problem if
100 year old shipwrecks were rare, but that is not the case! Based on known
shipwrecks off the New Jersey coast, I would estimate that almost half the
shipwrecks in the ocean are over 100 years old.
This brings us to
problem two of the
treaty, which is that access to shipwrecks (UCH) by it primary users is
not guaranteed by this treaty. Essentially this document would allow a
small clique of archaeologist and government cultural resource managers to
determine if access is "incompatible with protection and
management." And the cultural resource manager that would be making that
decision would have nothing to do with the other users because the treaty
defines this resource solely as "Underwater Cultural Heritage."
The real scary thing about this treaty is
that it could be applied to anyone who just tries to visit a shipwreck or fish
on a shipwreck. The definitions allude to "Activities incidentally
affecting underwater cultural heritage" . . . "which may physically
disturb or otherwise damage underwater cultural heritage." (Article 1).
Without a guarantee of access, you will see many situations where a
shipwreck that has been fished and dived on for 50 years is suddenly off
limits to anyone except the chosen few.
Problem three is the extremely short
sighted and arbitrary "reporting and notification requirement." This
requires anyone that discovers a shipwreck in the contiguous zone, the
continental shelf, or the area beyond to immediately report this discovery
to the appropriate state (country). The problem here is that if you do so,
you may not be able to visit it again as the government could decide that
"access is incompatible with protection and management." Or they
could decide that no one is allowed to visit it until the wreck has been
examined by a professional archaeologist, and of course there is no money for
a survey by a professional u/w archaeologist. Obviously, this would be a very
negative incentive to report shipwrecks, even if the treaty threatens to
punish people that don’t.
There is also that other little problem that
undiscovered shipwrecks do not normally come with signs that say, "This
wreck is over a hundred years old and has never been discovered before."
Problem four is the other side of the
notification requirement, or consulting requirement. If a person reports a
shipwreck to a country, that country is required to report it to the
Secretary-General, who is required to notify all countries that signed the
convention. That alone is a reporting nightmare since there are thousands
upon thousands of shipwrecks off the Jersey coast alone, not to mention the
other coastal states.
Any signer country could declare an interest
in the reported shipwreck by postulating some sort of connection to the
shipwreck, such as the ship having been built in their country. If this
happens, the Coordinating State (country) "Shall implement measures of
protection which have been agreed by the consulting states."
Therefore, if the consulting countries
decided that no one should be allowed to fish or dive on the wreck, they could
force that action on the country on whose contiguous zone the wreck lies. This
would allow any country to interfere with legitimate archaeological surveys,
salvage efforts, or even fishing on shipwrecks that are not warships or flag
ships. In a sense, the Treaty is extending sovereign immunity to any shipwreck
that any other country expresses an interest in!
Problem five is that the treaty
is
expanding a country’s jurisdiction well into international waters.
Previously, a country only had very limited rights in the contiguous zone over
natural resources and fishing. Now this is being expanded to what is
tantamount to government ownership rights over almost all man-made objects,
which actually may still be claimed by their former owners or insurance
companies. The Treaty is undoing established Admiralty Law and giving extended
government jurisdiction to what could be well beyond 200 miles with the
continental shelf concept, provided that country agrees to enforce an extreme
archaeological doctrine.
Countries will next be claiming fishing and
oil rights for the entire continental shelf far beyond 200 miles. This threat
of dividing up the ocean is one of the reasons the U.S. delegation has not
endorsed this treaty. The underdeveloped countries see it as a method of
gaining additional territory and jurisdiction, not to mention control over
treasure wrecks and possible future oil and fishing monopolies beyond 200
miles.
Problem Six is the Treaty’s demand
that underwater cultural heritage not be traded, sold, brought or bartered.
At first this sounds like a good idea, but think again. If this were applied
to objects on land, nobody could sell a house over a 100 years old. Antique
dealers would all be criminals! Museums could not pay to acquire
archaeological specimens, and so on. It’s such a bad idea that Rule 2 of the
Rules immediately starts making exceptions to itself. Why should cultural
heritage be traded and sold when found above water, but be illegal to be sold
if found below water?
Problem Seven is the arrogant and
punitive nature of the treaty. The Treaty demands countries pass rules that
anyone report the location of shipwrecks, demands that they accept the Rules,
demands that they impose severe sanctions for violations of the convention,
demands that the country prohibit the possession of UCH not recovered
by the Rules, demands that they seize any UCH recovered inconsistent with the
Rules, demands that UCH be reported to the UN, demands that UCH not be traded
or sold, and so on. No deviation from this archaeological dogma is
permitted, even if it doesn’t make sense as a management tool. Truly, the
dictatorship of the archaeologist/bureaucrat has arrived.
Problem Eight is
that the tricky treaty
is deceptive. The treaty first says a county has the exclusive right to
regulate and authorize activities directed at UCH in its internal waters,
archipelagic waters and territorial sea. It then turns around and says that
state parties shall require that the "Rules" be applied to
activities directed at underwater cultural heritage in their internal waters,
archipelagic waters and territorial sea. Therefore, a country does not have a
right to write its own rules in its own territorial sea or internal waters! By
doing this, the Treaty just negated the flexibility Congress gave to states to
design their own rules by the Abandoned Shipwreck Act.
Problem Nine is the "Rules."
The rules are obviously intended as complex rules for archaeological
excavations. But they are being applied to every shipwreck over 100 years old
even if that shipwreck is of little archaeological importance and of no
historic importance. The treaty defines UCH so that almost anything over a
hundred years would be included other than pipelines and cables, and then
affords what can only be described as fanatical protection. If the shipwreck
were to be found to be unimportant archaeologically, you would still have to
follow all the Rules and the Treaty.
The rules are also being applied if the only
intent is to recover an item to identify the wreck or to recover an artifact
for a museum. Most of the shipwrecks off the coast are not identified by
archaeologists, but by interested sport divers who may need to sample small
items to date and identify the wreck. Yet this treaty would not allow any
amateur or avocational approach, and would demand a paid professional
archaeologist be present along with a complex and expensive project design.
This would make it very difficult and expensive to even determine if the wreck
is 100 years old! It would also discourage the avocational mapping,
identification, and research on shipwrecks, which constitutes most of what you
and I call underwater archaeology in this country.
The Rules also demand adequate and long term
funding for any u/w archaeological project. I have participated in a number of
archeological projects with professional u/w archaeologists, none of which was
adequately funded and all of which were run on a shoestring. This treaty and
its Rules would make almost any u/w archaeology difficult to impossible to
conduct in the real world. It would also make it very, very expensive. The net
result would be to discourage almost all u/w archaeological projects.
Problem Ten is the contradiction between
the existing Abandoned Shipwreck Act (ABA) and the UNESCO Treaty. The
federal Abandoned Shipwreck Act, which gave states control of shipwrecks in
state waters, established a policy of the Congress toward Shipwrecks which
included "guarantee recreational exploration of shipwreck sites."
This policy was put in the ABA by Congress to reiterate to states that the
resource is not the private preserve of a small group of archaeologists and
government resource managers.
Apparently the UNESCO Treaty thinks
otherwise because no such policy was put in the UNESCO Treaty.
Another policy of the Congress was to
"allow for appropriate public and private sector recovery of shipwrecks
consistent with the protection of historical values and environmental
integrity of the shipwrecks and the sites" and "recognize the
interests of individuals and groups engaged in shipwreck discovery and
salvage." In other words, the ASA recognizes legitimate exploration and
commercial salvage of shipwrecks provided it is done in an acceptable
environmental and historical manner.
The UNESCO Treaty and it’s RULES is
trying to ban all private recovery or salvage of shipwrecks. It makes
statements such as, "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, brought or bartered as commercial goods." And it defines
anything over a hundred years as UCH, even if it is not archaeologically
significant. The Abandoned Shipwreck Act uses the generally acceptable
standards of the National Register of Historic Sites to determine if a
shipwreck is truly historic or of archaeological importance, which does ask
the key question "why" something is of archaeological or historic
value.
Other key concepts in the ASA were to
"foster a partnership among sport divers fishermen, archaeologists and
salvors and other interests to manage shipwreck resources of the States and
the United States and facilitate access and utilization by recreational
interests. The UNESCO Treaty, however, only mentions archaeologists and
government officials and doesn’t recognize any other use of shipwrecks
except UCH. It’s fostering an elitist clique approach to shipwreck
management. The philosophy and goals of the ABA and the UNESCO treaty are
radically different.
Problem Eleven
is the stated purpose
of the UNESCO Treaty, which is supposed to be "the protection of
underwater cultural heritage." However, it appears that the authors of
the Treaty (so called government experts) have little understanding of what
really causes the destruction of shipwrecks or underwater cultural heritage.
In New Jersey at least 10 shipwrecks were
buried in one massive sand replenishment project killing millions of fish,
destroying the hard habitat associated with the shipwreck reefs, and making
access by fishermen, divers, archaeologists and other users impossible. One of
those shipwrecks was on the National Register of Historic Sites. Two
shipwrecks were pulverized (one inside the borrow area and one outside) by the
Army Corps of Engineers (COE) contracted dredge, even though the wreck inside
the borrow area was located. The dredge was supposed to avoid the wrecks, and
immediately report any wreck material that came up the dredge - which never
happened. One of those wrecks hit by the dredge was considered historic.
Government sponsored projects and commercial
fishing destroys far more shipwrecks than any commercial salvage ever did, yet
the Treaty ignores these facts and gives the false impression that the big
problem is looters and salvage. The treaty is pushing a fanatical
archaeological dogma based mostly on myth. What it should be doing is pushing
a realistic management plan to fully utilize our shipwreck resources, and
including all its users in its management.
CONCLUSION
In conclusion, The UNESCO Convention on the Protection of Underwater Cultural
Heritage is one of the most ill conceived, arbitrary, arrogant, and dogmatic
documents ever written! It’s pushing an archaeological dogma that never
worked in the management of shipwrecks. It doesn’t recognize any other users
of our shipwreck resources and pretends that archaeology is the one and only
thing that matters. It does not guarantee public access to shipwrecks, or
access by the principal users of shipwrecks.
It allows countries to claim extravagant
ocean boundaries that they previously did not have in the very questionable
name of protecting UCH. This, despite the fact that the treaty seems to have
little understanding of what really causes the destruction of shipwrecks or
UCH. It also allows countries to mettle in the affairs of other countries by
claiming connection to shipwrecks that they have no legal basis for.
The treaty is extremely dictatorial and
punitive. It makes all kinds of unrealistic demands that counties and people
report shipwreck location, demands that they follow the Rules, demands that
they seize anything recovered contrary to the rules, and so on with little or
no thought to what’s this arrogant policy is likely to actually prompt
people to do. The treaty will discourage u/w archaeology by making extremely
complicated and expensive requirements, and will definitely discourage the
avocational mapping and identification of UCH.
The Treaty is deceptive regarding its policy
toward internal, archipelagic, and territorial sea. It does not allow a county
to design its own policy if that policy does not totally agree with the
"Rules." One really gets the impression that the treaty has more to
do with government ownership and control, and pushing a strict archaeological
dogma than protection or good management.
In essence, the Treaty has gone off the
archaeological deep end. It’s trying to force the entire world to bow down
to an archaeological dogma and doesn’t care what methods it uses to get to
that goal. It is truly a shark in the disguise of an angelfish.
Jack Fullmer,
Legislative Chair
New Jersey Council of Diving Clubs
3/20/02 - passed by NJCDC May 29, 2002 |