In 1832 the famous geologist Charles Lyell wrote the following: “For it is

probable that a greater number of monuments of the skill and industry of man will, in

the course of ages, be collected together in the bed of the ocean than will be seen at

one time of the surface of the continents” (Lyell 1997:322 [1832]). This quotation was

far ahead of its time because it would not be until over a century later that

archaeologists would begin searching the depths of the ocean for traces of humanity’s

existence. When they did, archaeologists found that, while Lyell’s statement may have

been slightly hyperbolic, the core idea of the statement was very true. This being that

there is a multitude of “monuments” (to use Lyell’s word) that are situated on the ocean

floor, whether they be shipwrecks, structures, buildings, submerged landscapes,

artifacts, or human remains.

As underwater discoveries became more common with the advent of new

technologies, like the Self Contained Underwater Breathing Apparatus (SCUBA),

Remotely Operated Vehicles (ROVs), Autonomous Underwater Vehicles (AUVs),

submarines, etc., it became apparent that these archaeological resources needed

protection under a legal regime, similar to the protection afforded to terrestrial finds. In

fact, in many cases, underwater archaeological resources needed stricter legal

protection as they were constantly under threat of being compromised or even

destroyed by treasure hunters, looters, and “salvors”. As a result, multiple nation

states, international bodies, and individual states/provinces began to draft legislation

particularly geared towards underwater archaeological resources, hereafter referred to

using the commonly accepted term of “underwater cultural heritage” or UCH. This

paper will explore the development of these legal systems, with particular attention

being paid to the body of international legislation that has come about in the 30 years

following the United Nations Convention on the Laws of the Sea III (UNCLOS III) held in

1982.

Before moving onto the actual protection of the UCH the location of the UCH

must be discussed. As Blanco and Varmer (2000:32) state “the location of the UCH is a

critical factor in determining which law or laws can be used to protect the UCH”.

Regarding the ocean, the primary piece of legislation that deals with location, is the

United Nations Council on the Laws of the Seas III (UNCLOS III). UNCLOS III created

different zones or areas of the ocean, gave them specific names, and stipulated how far

these zones extend. The first zone is called the “territorial sea” and “is now defined as

the belt of ocean measured from the baseline of the coastal state not to exceed 12

nautical miles (nm)” (Blanco and Varmer 2000:32 and UNCLOS III Part II, Section 2,

Article 3). The next zone is the “contiguous zone” and “is adjacent or contiguous to the

Territorial Sea and may extend out to 24 nm from the baseline” (Blanco and Varmer

2000:32 and UNCLOS III Part II, Section 4, Article 33, Paragraph 2). The most extensive

zone is termed the “exclusive economic zone” (EEZ) which “shall not extend beyond 200

nautical miles from the baselines from which the breadth of the territorial sea is

measured” (UNCLOS III Part V, Article 57). UNCLOS III also defined the “continental

shelf”, though this region only relates to the coastal states’ rights to explore and exploit

its natural resources. The only other term that UNCLOS III defined, that relates to UCH,

is “the area” which “means the seabed and the ocean floor and the subsoil thereof,

beyond the limits of national jurisdiction” (UNCLOS III Part I, Article 1, Paragraph 1(1)).

Simply “the area” is composed of all the water in the ocean that is not within any

coastal state’s territorial sea, contiguous zone or EEZ. A depiction of these zones is

found in figure 1 (taken from Maarleveld 2011:927).

Figure 1: Showing the Zones of the Sea as determined by UNCLOS

Once the location of the UCH can be determined, the laws concerning the

protection of the UCH can be discussed. The first mention of UCH found in an

international context is in the same piece of legislation that delineated the zones of the

sea. In UNCLOS III there are two articles, 149 and 303, which treat UCH very briefly.

Article 149 deals with “archaeological and historical objects” found in “the area” and

simply says that these objects “shall be preserved or disposed of for the benefit of

mankind as a whole, particular regard being paid to the state or country of

origin…cultural origin, or…historical and archaeological origin”. While this article is

vague about what constitutes these objects, how they should be preserved or disposed

of, and what exactly is the benefit of mankind as a whole, it is important in two regards.

First, it creates a duty for the states to preserve or dispose of the objects, and second, it

calls for the preservation or disposal for the benefit of mankind. Article 303 further

elaborates on Article 149 by explicitly stating: “States have the duty to protect objects of

an archaeological and historical nature found at sea and shall cooperate for this

purpose”. Article 303 also makes a very important statement regarding illicit trade in

UCH. This article states that should UCH be removed from the contiguous zone of any

coastal state, without that state’s approval, this action “would result in an

infringement…of the laws and regulations” of that sate, and provides that the state may

take appropriate legal action to prosecute the offender. Although Article 303, like 149,

is vague, it reaffirms the duty of the states to protect their UCH and allows for them to

prosecute offenders who illegally remove or traffic UCH.

As noted above, Articles 149 and 303 do not even begin to scratch the surface of

the problems that should be addressed. This became apparent soon after UNCLOS III

was finalized and opened for signatures in 1982. Within 10 years, organizations and

states had already begun to “review the preservation measures for underwater cultural

heritage in international waters, and [had] concluded that a convention was needed to

overcome the difficulties apparent in…UNCLOS” (Forrest 2010:331). Organizations such

as the International Law Association (ILA), the International Council on Monuments and

Sites (ICOMOS), and even the United Nations Educational, Scientific and Cultural

Organization (UNESCO) convened extensive meetings and draft conventions dealing

with UCH.

One such convention was the International Convention on Salvage 1989

(SALCON89), held by the International Maritime Organization. This convention was

called because many people acting under the common law of salvage and/or the

common law of finds, were able to loot and steal UCH from practically anywhere

without any kind of repercussions. Thus, this convention sought to formally codify the

law of salvage and the law of finds, and how they related to the UCH. These two

common admiralty laws have been around for thousands of years and Forrest

(2010:289) notes “By 500 BC, a system of encouraging the recovery of lost vessels and

their cargo was established in the form of the Rhodian Maritime Code, which applied in

ancient Greece”. The law of salvage is basically one that provides a reward for anyone

who rescues a ship or her cargo that are “in marine peril”. This law has traditionally

been used specifically for recovering items of a commercial nature, so that the goods

could re-enter the economic stream and so that there was no “peril” of loosing the

goods’ potential economic stimulus. The law of salvage allows for the person who saved

the goods from destruction to receive a reward from the owner of the vessel/cargo for

saving the property. This reward could be part of the items saved or monetary in nature.

The law of finds, on the other hand, assumes that the items recovered have been

abandoned, or that a rightful owner cannot be found, transfers the title of the ship or

cargo to the person who finds it. This law simply “gives legal force to the venerable

maxim ‘finders-keepers’” (quoted in Phelan and Forsyth 2004:121). SALCON89 does a

good job of laying out the rules and regulations for recovery, salvage contracts, duties of

the salvors, and stipulations for determining the reward given for salving. The most

important part of this legislation, though, is found in Article 30(1d) which states “Any

state may…reserve the right not to apply the provision of this Convention: when the

property involved is maritime cultural property of prehistoric, archaeological, or historic

interest”. This was a break-through in legislation because it was the first legal document

that denied the ability to apply the law of salvage and law of finds to UCH. Many states

have taken advantage of this clause and exercised their rights to exclude UCH from the

jurisdiction of the law of salvage and the law of finds.

Another convention, called by ICOMOS in October of 1996, dealt with UCH in

much greater detail than SALCON89. The result of this five day convention was the

International Charter on the Protection and Management of Underwater Cultural

Heritage (ICOMOS96). This charter handled many aspects of UCH that had previously

been ignored. It defined UCH and noted that “by its very character the underwater

cultural heritage is an international resource” (ICOMOS96:1). It provided that in situ

preservation of UCH should always be considered before any intrusive work is done. The

charter includes almost every detail that should be taken into account when dealing

with UCH. Articles 2-4 explain general guidelines for project designs, funding, and

timetables. Articles 5-6 require that the research objectives, methodology, and

techniques be explained in the project design. These articles also stipulate that “All

persons on the investigating team must be suitably qualified and experienced for the

project roles” (ICOMOS96:3). Articles 7 and 8 deal with preliminary investigation and

how this should be conducted, as well as the proper methods for documenting UCH.

Articles 9-11 explain that all materials should be conserved “in accordance with current

professional standards” (ICOMOS96:3), and demands that a site management and

maintenance program be initiated. Articles 12-15 deal with the reporting of UCH,

setting up a long term curation program, and the proper way to disseminate the

knowledge gained to the public at large. Article 14 is extremely important because it

calls for co-operation between the group conducting the investigation, the local

community and other groups that might have an interest in that particular UCH. This

article also provides that “Where practical, the investigation team should provide

opportunities for the public to develop archaeological skills and training through

education” (ICOMOS96:4). Public awareness, co-operation and involvement should be a

crucial part of any archaeological dig, whether underwater or on dry land. The last

article, article 15, calls for international co-operation because it “is essential for [the]

protection and management of underwater cultural heritage and should be promoted in

the interests of high standards of investigation and research” (ICOMOS96:4). At the

time, this charter was the most extensive piece of legislation dealing with UCH. ICOMOS

forwarded this piece of work to UNESCO with the hope that it would inspire them to call

a UN council dealing with UCH. Many other international organizations followed

ICOMOS’ lead and pressed the UN to establish a convention concerning UCH. The UN

responded and in November of 2001 UNESCO held the Convention on the Protection of

the Underwater Cultural Heritage (CPUCH) in Paris, France.

CPUCH is now considered the most in depth piece of international legislation

dealing with UCH. It is a 26 page work, at least 20 years in the making, and was the

main item of concern for the general conference of UNESCO from 15 October to 3

November. The convention was opened for signatures in 2001, providing a crucial

stepping stone and a strong foundation on which to build future laws regarding UCH.

CPUCH begins by defining UCH 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” (UNESCO 2001, Article 1(a)). It

elaborates on this definition by citing a list of material remains that could be considered

UCH, with the addition of one particular item that all previous laws handling UCH failed

to address. That is, all objects deemed UCH are considered as such “together with their

archaeological and natural context” (UNESCO 2001, Article 1a(i)). This was an important

addition because UNESCO recognized that it was not just the objects that were

important UCH that could reveal fascinating things about humanity’s past, but the

surrounding context in which the objects were found could provide just as much, if not

more information than the objects themselves. This was the first piece of international

law that recognized what every archaeologist is taught from the first day of Archaeology

101…context is everything. Fagan (1988:41) notes that “context of the artifacts in time

and space is vital. To every archaeologist, an artifact is worthless without its context”.

He even goes so far to say that “The context of space and time lies at the very

foundations of modern archaeology” (Fagan 1988:42). By allowing for contexts to be

considered UCH, the convention allows for people who disturb the surrounding matrix

that a site is located in, to be punished whether or not they removed a tangible object.

One of the major goals for CPUCH was the de-commercialization of UCH, which

as stated above, is a significant problem for the protection of UCH. Article 2, paragraph

7 provides that “Underwater cultural heritage shall not be commercially exploited” and

Article 4 states “underwater cultural heritage…shall not be subject to the law of salvage

or law of finds”. These two articles together prohibit any kind of looting or salving of

UCH, and state UCH should not be excavated then sold in the private sector, such as at

auction, or through a private transaction. CPUCH also explains the rights of nations

regarding UCH, according to the zones of the sea set down in UNCLOS and discussed

above. In their territorial sea, states “have the exclusive right to regulate and authorize

activities directed at underwater cultural heritage” (UNESCO 2001, Article 7, paragraph

1). In a state’s contiguous zone, the provision is almost the same except states do not

have the exclusive right, but rather they “may regulate and authorize activities directed

at [UCH]” (UNESCO 2001, Article 8). For UCH contained in the EEZ or on the continental

shelf, Article 9, paragraph 1 says “All state parties have a responsibility to protect

underwater cultural heritage in the exclusive economic zone and on the continental

shelf”. Article 10, paragraph 2 again changes the exact rights of the state when dealing

with UCH on the continental shelf or in the EEZ. It states that each nation “has the right

to prohibit or authorize any activity directed at such heritage”. Basically the states’

rights to control UCH found in their waters changes as one gets further from shore.

Simply, in its territorial sea, the state holds the exclusive right to regulate and authorize

anything dealing UCH found in that zone. In the contiguous zone, the state may

regulate and authorize things dealing with UCH, and by the time one reaches the EEZ

and continental shelf the only power that the state holds is to prohibit or authorize

activities dealing with UCH, meaning that they cannot control anything happening out

there, they can only say yes or no to what is happening. CPUCH also sets out guidelines

for the reporting, notification, and any subsequent activities directed at UCH which is

found in “the area” in articles 11 and 12.

CPUCH has some very important other areas that need to be discussed as well.

There is a call for states to reach bilateral, regional, or other multilateral agreements for

the protection and preservation of UCH. There are several cases where this has already

been done. The most famous would be the agreement between Canada, the United

States, France, and the United Kingdom for the protection and preservation of the RMS

Titanic, which is now covered under CPUCH, since it over 100 years old this year. Other

examples include an agreement between the United States and Spain regarding the

preservation of two Spanish galleons, “the Juno and La Galga that…were lost off the

coast of Virginia in 1750 and 1782 respectively” (Varmer 2006:368). A final example is a

bilateral agreement between France and the United States regarding the C.S.S.

Alabama. This ship sank about seven nautical miles off the coast of Cherbourg in

northwestern France in 1864. The bilateral treaty sets up “a scientific committee,

composed of representatives from each party’s government, to review…any project

concerning the development of the wreck…in addition, the French authorities are

authorized…to protect the wreck” (Phelan and Forsyth 2004:126). These agreements

are exactly what CPUCH was calling for and the nations involved in these arrangements

are setting a standard for all other countries to co-operate with each other concerning

the protection of the UCH.

Other very important areas of the convention are articles 14-18 and articles 19-

22. Articles 14-18 explicitly deal with everything involving the illicit trade and illegal

trafficking of UCH. This set of articles stipulates that states 1). take all measures in

preventing illicitly traded UCH from being brought into their country, 2). that they do

not allow their nationals or vessels flying their flag to engage in any illegal action

directed at UCH and 3). provides that sanctions for any violations of the convention shall

be determined by each state. Article 18 also gives states the right to seize any and all

UCH that has been illegally removed and to the best of its ability try and establish where

the UCH came from, who it belongs to (if anybody), and make an educated decision

about what to do with the seized material. Articles 19-22 deal with information sharing,

public awareness, training programs, and competent authorities. Article 19 states that

nations shall co-operate with each other in the preservation of UCH, and one aspect of

doing this is through the sharing of information regarding discovery, location, legal

development, or technologies dealing with UCH, unless the “disclosure of such

information might endanger or otherwise put at risk the preservation of such [UCH]”

(UNESCO 2001, Article 19, paragraph 3). Article 20 provides that all sates should do

what they can to increase public awareness of the importance and significance of UCH.

Article 21 furthers this notion by obliging nations to develop programs to teach the

public about underwater archaeology and the preservation of UCH. Finally, article 22

states that all this should be done under the direction and supervision of competent

authorities such as underwater archaeologists and preservation/conservation

specialists.

The last and, some people have argued, the most important section of CPUCH is

the Annex, beginning on page 16, entitled “Rules Concerning Activities Directed at

Underwater Cultural Heritage”. This Annex was directly influenced by ICOMOS96 and in

many cases is verbatim of the rules and guidelines found within the ICOMOS charter.

This annex is composed of 36 rules that act as a framework when considering activities

dealing with UCH. The rules include stipulations for in situ preservation, the protection

of human remains, international co-operation, project design, methodology, funding,

preliminary work, project duration, qualified workers, conservation, documentation,

and the dissemination of the findings, as well as a host of other concerns. The rules are

extremely important because many states that did not or have not signed the CPUCH,

have agreed that the annexed rules, are a very good set of guidelines for conducting

underwater research, and should be adhered to even if their state did not agree to the

convention.

On 2 January 2009, CPUCH entered into force, having received its 20th signature

of acceptance/ratification from Barbados on 2 October 2008. Since it entered into

force, 21 more nations have either accepted or ratified this Convention making it the

most agreed upon piece of international legislation dealing with UCH. Below is a table

showing all 41 signatories and the date they either ratified or accepted the convention

(taken from http://www.unesco.org/eri/la/convention.asp?KO=13520&language=E).

Table 1: CPUCH signatories as of 22 April 2012

It has been 30 years since UNCLOS III was opened for signatures and became the

first piece of international legislation dealing with underwater cultural heritage.

UNCLOS III dealt with UCH briefly and in a very imprecise manner, but that is to be

expected, being that it was the first to address this issue. In the following three decades

more and more laws and treaties were drafted, which were partially or wholly dedicated

to the protection of underwater cultural heritage, and the challenges faced when

dealing with this unique class of archaeological resources. Early pieces of legislature

including SALCON89 and ICOMOS96 paved the way for what is now the most extensive

international treaty ever drawn up to protect UCH. The only issue is that UNCLOS III,

SALCON89, ICOMOS96, and CPUCH are only treaties and these documents are only as

good as those people who signed them into force, meaning that the UN has no real

authority to punish states that violate the agreements found within these works.

Though we have come a long way in the past thirty years, there is still much

work to be done. Individual nation states should consider drafting national laws that

deal with UCH, and in fact some have done so already, but they are the exception, not

the rule. Within nations, individual provinces and states should enact laws that protect

UCH, and again this is being done already, but on a very small scale. Only time will tell if

the signatories to these treaties hold to the standards laid down therein and whether or

not more nations will follow suit and enact laws dealing with UCH. For now though,

underwater archaeologists can sleep soundly knowing that there is a fair amount of

legal work that protects UCH from undue harm.

Works Cited

Blanco, C., and Ole Varmer 2000 Protecting the Underwater Cultural Heritage under International and U.S. Law. In Topics in Cultural Resource Law, edited by Donald Forsyth Craib, pp. 31-48. Society for American Archaeology, Washington D.C.

Fagan, B. 1988 Archaeology: A Brief Introduction. 3rd ed. Scott, Foresman and Company,

Glenview, Illinois Forrest, C. 2010 International Law and the Protection of Cultural Heritage. Routledge, New

York. International Council on Monuments and Sites 1996 International Charter on the Protection and Management of Underwater

Cultural Heritage. The International Journal of Nautical Archaeology (1998) 27.3:183-187

International Maritime Organization 1989 The International Convention on Salvage 1989. Electronic document,

http://www.safesea.com/salvage/law/salcon_89.html Lyell, C. 1997 [1832] Principles of Geology, Being an Attempt to Explain the Former

Changes to the Earth’s Surface. 1997 facsimile ed. Penguin, Harmondsworth, UK Maarleveld, T. 2011 Ethic, Underwater Cultural Heritage, and International Law. In The Oxford

Handbook of Maritime Archaeology, edited by Alexis Catsambis, Ben Ford, and Donny Hamilton, pp. 917-941. Oxford University Press, Oxford

Phelan, M., and Marion Forsyth 2004 A Comprehensive Regime for the Protection of Underwater Cultural

Heritage. In Legal Perspectives on Cultural Resources, edited by Jennifer Richman and Marion Forsyth, pp. 119-139. Altamira, Walnut Creek

United Nations Educational, Scientific and Cultural Organization 1982 United Nations Convention on the Laws of the Sea. Electronic document,

http://www.un.org/depts/los/convention_agreements/texts/unclos/unclos_e.pdf

2001 United Nations Convention on the Protection of the Underwater Cultural Heritage. Electronic document, http://unesdoc.unesco.org/images/0012/001260/126065e.pdf

2012 Signatories to the Convention on the Protection of the Underwater Cultural

Heritage. Electronic document, http://www.unesco.org/eri/la/convention.asp?KO=13520&language=E

Varmer, O.

2006 United States of America. In The Protection of the Underwater Cultural Heritage: National perspectives in Light of the UNESCO Convention 2001. 2nd ed., edited by Sarah Dromgoole, pp. 351-385. Martinus Nijhoff, Leiden.

Underwater Cultural Heritage: A Legal Perspective

Anth. 5053 Spring 2012

Tim Lambert-Law de Lauriston