Maritime Law and Underwater Archaeology
Description: Commercial treasure hunting of shipwrecks vs.
underwater archaeology. Are archaeologists losing the public debate?
Can archaeologists compromise with salvors without losing their souls?
Are shipwrecks like the Titanic significant archaeological resources
worth fighting for?
Learning Objectives:
• Analyze the field of underwater archaeology preservation through a study of international maritime law and treasure salvage.
• Evaluate the Abandoned Shipwreck Act and other U.S. approaches to underwater preservation.
• Assess the perspectives of commercial salvors and compare their ethical standards to those of archaeologists.
• Evaluate conflicting approaches to the treatment of the R.M.S. Titanic; choose and defend a position.
Readings:
G. Miller, "The Second Destruction of the Geldermalsen," The American Neptune XLVII, no. 4 (1987): 275-81.
R. J. Elia, "The Ethics of Collaboration: Archaeologists and the Whydah Project," Historical Archaeology 26, no. 4 (1992): 105-117.
R. J. Elia, "U.S. Protection of Underwater Cultural Heritage Beyond the Territorial Sea: Problems and Prospects," International Journal of Nautical Archaeology 29 (2000): 43—56.
R. J. Elia, "Titanic in the Courts," Archaeology 54, no. 1 (2001): 54-55.
1. Jurisdictional/Legal Background
a. Sources of International Law
• International Conventions: More than 60 relating to maritime issues since 1884, dealing with rights of navigation, working conditions of sailors, shipping, the slave trade. In recent decades the focus has shifted to fisheries conservation, environmental protection, and commercial exploitation of seabed resources.
• United Nations Law of the Sea (LOS): Three international conventions—I in 1958, II in 1960, and III in 1982. Currently there are 130 parties to the convention (not including the United States).
• In LOS III, two articles relate to cultural heritage (Articles 149 and 303).
b. Territorial Issues: International law recognizes several distinct maritime zones of jurisdiction. They are:
• Territorial Sea: All states claim sovereignty over a belt of sea adjacent to their coastlines and extending out from the low-water mark. In the 18th century, a 3-mile-wide territorial sea developed; LOS I allows nations to declare a 12-mile territorial sea. By 1993, 80% of nations had a 12-mile territorial sea. Underwater cultural heritage in this zone is subject to the coastal state's laws and policies.
• Contiguous Zone: A zone of extended, specialized powers of a coastal state, extending seaward from the outer edge of the territorial sea to a maximum of 24 miles from the baseline of the territorial sea (i.e., low-water mark). Thus a state with a territorial sea of 12 miles may have a contiguous zone from 12-24 miles. This is not a sovereign area, but coastal states may apply certain controls relating to national customs and fiscal, immigration, and sanitary laws. Article 303 of LOS allows coastal states to regulate "objects of an archaeological and historical nature found at sea" in the contiguous zone as "an infringement within its territory or territorial sea of the laws and regulations" pertaining to that zone. Several states (e.g., Denmark, France, Tunisia, and China) now have laws controlling underwater archaeological sites in this zone.
• Exclusive Economic Zone (EEZ)/ Continental Shelf: LOS allows nations to establish EEZs extending out to a distance of up to 200 miles from the coast. Within the EEZ, nations have the right to control the exploration, exploitation, management, and conservation of living and non-living resources. By 1996, 97 nations claimed an EEZ.
• High Seas: This zone comprises all the seas beyond the seaward boundary of the EEZ. In this region the principle of Freedom of the High Seas prevails. Article 146 of LOS states that: "All objects of an archaeological and historical nature found in the Area shall be preserved or disposed of for the benefit of mankind as a whole, particular regard being paid for the preferential rights of the State or country of origin, or the State of cultural origin or the State of historical and archaeological origin."
• The treatment of underwater cultural heritage in LOS is vague and confusing. Still, three principles are clear: (1) states have a duty to protect submerged archaeological resources; (2) states have the right to control submerged archaeological resources in the contiguous zone as if within their own territorial seas; and (3) archaeological resources in the High Seas should be managed on behalf of mankind as a whole.
2. Admiralty Law/Law of Salvage
a. Ownership: Rights of jurisdiction do not necessarily affect the ownership of underwater cultural heritage. Ownership is controlled by laws of property, admiralty, and salvage.
• Law of Salvage: If the property that is the object of a salvor is owned by someone other than the salvor, the salvor is entitled to compensation, not title. The property is not considered abandoned.
• Law of Finds: An adjunct to the Law of Salvage. If the property is abandoned, i.e., the owner has relinquished title voluntarily or title has been lost, then the salvor is entitled to own the property. Abandonment must be proven.
b. Salvage law in the maritime context is applied to contemporary situations and was never intended to cover archaeological sites or historic wrecks. Traditionally, salvage relates to recovery of goods at sea that are considered "at peril"—usually in danger of being lost by sinking. Those who rescue lost property while it is sinking, or after it has sunk, thereby returning it to the stream of commerce, are entitled to a salvage award. In contemporary treasure salvage, this maritime principle is applied to ancient shipwrecks and property, which is inherently considered "at risk".
c. Under English common law (including U.S. law), marine salvage is under the purview of admiralty jurisdiction. In the United States, Article III, Section 2 of the Constitution provides for federal court jurisdiction for all cases relating to events at sea. Thus when treasure salvage began in the 1960s the treasure hunters went to admiralty court seeking salvage rights over "abandoned" historic shipwrecks. A conflict arose between federal admiralty jurisdiction and state jurisdiction when several states enacted legislation seeking to control the salvage of historic shipwrecks. The conflict of jurisdiction was eventually overcome through the passage of the Abandoned Shipwreck Act of 1987.
3. Situation in the United States
a. Traditionally the United States has maintained a 3-mile sea. In 1988 President Reagan extended the U.S. territorial sea to 12 miles for national security purposes, but the proclamation does not affect existing laws. Therefore the Abandoned Shipwreck Act still covers only the 3-mile territorial sea.
b. In 1999, President Clinton extended the contiguous zone (previously extending to 12 miles) out to 24 miles.
c. Beyond the contiguous zone, the United States has declared jurisdiction over the continental shelf and an EEZ extending out 200 miles from the coast.
d. The United States has done little to protect cultural resources beyond the territorial sea, and treasure salvage occurs regularly. A few National Marine Sanctuaries, including one that protects the USS Monitor, have been declared; these are subject to federal control. Also, areas leased for mining by the Minerals Management Service are subject to national laws such as the National Historic Preservation Act.
4. The Abandoned Shipwreck Act of 1987 (ASA)
a. Purpose of Law: "To vest title to certain abandoned historic shipwrecks that are buried in State lands to the respective States and to clarify the management authority of the States for these abandoned historic shipwrecks."
b. "Historic Shipwrecks": Defined as abandoned shipwrecks that are (1) embedded in submerged state lands; (2) embedded in coral formations in state lands; and (3) those located on State lands that are included in or eligible for inclusion in the National Register of Historic Places.
c. Multiple-Use in ASA: The law envisions the diverse groups that have an interest in underwater shipwrecks cooperating in their use and management, including preservationists and treasure salvors. The law also allows commercial salvage of shipwrecks.
d. Title and Exclusion of Salvage Law: The heart of the law is the simultaneous declaration of federal title to historic shipwrecks and the transfer of that title to the individual states. The states are then called upon to develop management programs for dealing with the shipwrecks. The effect is to remove the sites from the purview of federal admiralty court, where they would be subject to claims by treasure hunters.
5. The Convention on the Protection of the Underwater Cultural Heritage
(2001)
a. The class is assigned to read the new international UNESCO Convention on the Protection of the Underwater Cultural Heritage and to assess its strengths and weaknesses as an instrument for the preservation of submerged cultural resources in the face of a growing treasure hunting industry. Will the convention be successful? Points to consider in the discussion include:
• Definition of underwater cultural heritage (Article 1)
• Exclusion of Law of Salvage and Law of Finds (Article 4)
• Reporting and notification requirements (Article 9)
• Authorizations for activities (Articles 10, 12)
• Sanctions, seizure, and disposition (Articles 17, 18)
• Problems with the Annex: commercial exploitation and disposition (Rule 2), curation of project archives ( Rules 32-34).
6. Class Report: The Treasure Hunters' Perspective
a. Several treasure-hunting organizations have formed to lobby for the interests of commercial salvors and to oppose the UNESCO Convention on the Protection of the Underwater Cultural Heritage. One of the most active, the Professional Shipwreck Explorers Association (ProSEA), has published a Code of Ethics.
b. How does their Code of Ethics compare to archaeological values? Among the provisions:
• "Members shall establish and maintain the highest professional standards while investigating, excavating, salvaging, or otherwise utilizing shipwreck resources." This article begs the question: Whose standards?
• Members ". . . acknowledge that the public has a right to access the cultural, historical, and archaeological knowledge derived from any shipwreck. It is the responsibility of the member who supervises the exploration of any shipwreck to ensure that the activity is undertaken in such a way that as much scientific, historical and archaeological data as practically possible is gleaned from the site." Again, what exactly does "as much. . . as practically possible" mean?
• "A qualified Project Archaeologist must be employed on any shipwreck excavation that is deemed to be archaeologically significant." Who deems the shipwreck to be "archaeologically significant."
7. Discussion and Debate: The R.M.S. Titanic
a. Few shipwrecks are as controversial as the R.M.S. Titanic, the White Star liner that sank on April 15, 1912, with the loss of more than 1,500 passengers. Class discussion of this case will highlight most of the issues relating to the issue of treasure salvage vs. preservation of underwater cultural heritage.
b. Review the chronology of events, including the discovery of the site in 1985, the passage of the the R.M.S. Titanic Maritime Memorial Act by Congress in 1986, and the history of salvage efforts. Students should be encouraged to consider and debate the following topics:
• Sunk in 1912, is the Titanic an archaeological site? Or is it too recent? What can we learn from archaeological study that we do not already know from historical records, plans, etc.? Would we wish to preserve, say, a 1912 house site?
• Is Titanic significant and worthy of preservation as a cultural icon, even if we conclude there is little to learn from its archaeology?
• What are the jurisdictional issues? (Titanic is located in the high seas, and therefore beyond the reach of any coastal state. The salvors were declared salvors-in-possession in a Virginia admiralty court; how can a U.S. court award control of a site in international waters involving a British ship?)
c. Student Paper: Proposed International Agreement on Titanic
• The R.M.S. Titanic Maritime Memorial Act of 1986 expressed the opinion of the U.S. Congress that the ship has "major national and international cultural and historical significance and merits appropriate international protection." The Act directs the United States to negotiate with interested nations to develop an international agreement to preserve and manage the site; until then, "no person should physically alter, disturb, or salvage the R.M.S. Titanic. . ." Text may be read at www.law.cornell.edu/uscode/16/450rr.html.
• Draft agreement prepared by the United States, Canada, France, and the United Kingdom in 2000; the current salvors naturally oppose it.
• The agreement would make Titanic a memorial to protect its scientific, cultural, and historical significance. Preferred treatment would be in situ preservation. Research or even commercial use is not prohibited, but must be justified on the basis of "educational, scientific, or cultural interests."
• The basic question is: Should the disposition of Titanic and sites like it be decided by private, commercial interests (whichever salvor is able to find the site and file a claim) or by governments on the basis of historical and scientific interests?