Underwater Cultural Heritage and International Law by Sarah Dromgoole 400 pp. Cambridge University Press, The Edinburgh Building, Cambridge CB2 8RU, England, 2013, £75, ISBN 978-0521842310
Article first published online: 10 FEB 2014
© 2014 The Authors. International Journal of Nautical Archaeology © 2014 The Nautical Archaeology Society
International Journal of Nautical Archaeology
Volume 43, Issue 1, pages 230–232, March 2014
How to Cite
O'Keefe, P. J. (2014), Underwater Cultural Heritage and International Law by Sarah Dromgoole 400 pp. Cambridge University Press, The Edinburgh Building, Cambridge CB2 8RU, England, 2013, £75, ISBN 978-0521842310 . International Journal of Nautical Archaeology, 43: 230–232. doi: 10.1111/1095-9270.12050_19
- Issue published online: 10 FEB 2014
- Article first published online: 10 FEB 2014
Dromgoole concludes this book with a statement made by David Bederman—academic and former chairman of Odyssey Marine Exploration Inc., an historic ship salvor—in 2002 where he expressed the view that the Convention on the Protection of the Underwater Cultural Heritage 2001 ‘will be doomed to irrelevancy’. After 374 pages of close analysis of legal, political and practical aspects of the Convention, Dromgoole concludes: ‘this seems far from likely’. Negotiation of this Convention at UNESCO Headquarters in Paris over four years to 2001 was complex and tense. On many issues there was a split between the so-called major maritime powers—France, Germany, Japan, Netherlands, Norway, Russia, United Kingdom, United States of America (later called the ‘Group of like-minded States’), which saw the draft Convention as upsetting the ‘delicate balance’ to be found in the United Nations Convention on the Law of the Sea 1982 (UNCLOS)—and the remainder of the delegates. In some cases the political issues spread over into personal relations particularly where the people involved had also been engaged in negotiation of UNCLOS. In the years since 2001 many of these persons have retired, died or generally moved on. There is now an opportunity for those who wish to look anew at the issues in light of the fact that the disasters that were prophesized by some in 2001 have not eventuated. ‘Underwater Cultural Heritage and International Law’ provides guidance on the arguments that could be used to achieve this.
For example, one issue of significant importance during the negotiations was the treatment to be accorded what the 2001 Convention calls ‘State vessels and aircraft’ particularly where the remains of these lie within the archipelagic waters or territorial sea of another State. The Convention says the latter ‘should’ inform the former if such remains are discovered (Article 7(3)). Some States consider that this detracts from the sovereign rights they claim whereby they have the exclusive right to authorize any activity in relation to the remains. Dromgoole makes an argument that this provision is not as absolute as they allege. She relies on the primary imperative contained in Article 2(2) that States Parties shall co-operate in protecting UCH and concludes that ‘it seems inconceivable that a state party would fail to contact another state party where that party was the flag state’ (p. 162). She also points to Article 2(8) which says that nothing in the Convention shall be taken as modifying a State's rights with respect to its vessels or aircraft. This should reassure States by ‘introducing a degree of flexibility into the interpretation of Article 7(3)’ (p. 159).
Dromgoole deals extensively with the issue of State jurisdiction. There is an excellent analysis of Articles 149 and 303 of UNCLOS. She discusses how these two Articles, both of which contain serious flaws, could be interpreted to provide them with some substance. Jurisdiction was a highly controversial matter during the negotiations for the 2001 Convention. The way it was eventually dealt with is very complex and based on ambiguities which allow different methods of implementation. These are explained in depth. Her conclusion is that the support of flag States ‘is absolutely essential if the Convention is to succeed in fulfilling its primary objective’ (p. 305). The accuracy of this statement depends largely on how one views the politics of the situation. The flag States in question include the USA, the UK, Germany, France, Norway and Russia.
As is noted in a postscript France has now become party, and this raises the possibility that, over time, States vehemently opposed to aspects of the 2001 Convention in its early days change their attitude as they see themselves being left without influence. This has happened, for example, in respect of the UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property 1970 (noted by Dromgoole p. 373). In the case of the 2001 Convention an impetus in this direction could well be provided by the Meeting of States Parties and the establishment of the Scientific and Technical Advisory Body (Article 23). Dromgoole devotes only a page to this and it is basically descriptive (p. 361 with further brief reference on p. 367). Her views on the evolution of these bodies would have been most welcome for they are capable of becoming organs with immense power over future developments in all aspects of UCH. Non Member States will find themselves with little influence on those developments. This was one issue which has persuaded the Netherlands to consider becoming party to the 2001 Convention in 2014. When the time comes for the ‘flag States’ to consider becoming party, Dromgoole's arguments on such matters as sovereign immunity and State jurisdiction should be highly influential in enabling them to reconcile their positions under UNCLOS with the requirements of the 2001 Convention.
Indeed, the book as a whole concentrates on the positions and arguments of the ‘major maritime powers’. Other States receive little attention. There is only passing attention paid to Canada although Canada played a significant role during the negotiations. In addition, Robert Grenier, from Parks Canada, as Chairman of the ICOMOS International Scientific Committee for the Underwater Cultural Heritage and an observer at the negotiations forcefully presented the position of archaeologists both during the discussion of the Annex and in Plenary Session. On the other hand, Australia appears at greater length, mainly as a result of the Agreement between Australia and the Netherlands Concerning Old Dutch Shipwrecks 1972 (in particular p. 320). She records Maarleveld as writing that this ‘is nothing more than a deed of transfer of ownership on the condition of shared benefits’ (p. 110) but Australia regards it as being a bilateral treaty. Of States apart from Australia and Canada, the Group of 77 is seen almost as irrelevant (p. 366) in spite of the fact that it is increasing rapidly in political and financial power. Reference is made to Australia, Canada, China, Ireland and South Africa as likely to become party to the 2001 Convention and begin to exert influence on its future direction (p. 367). Just what that influence will be remains to be seen as during the negotiations they strongly supported the Group of 77.
This book is an excellent source of information generally on law surrounding the two Conventions. For example, there is an interesting discussion on inter-state agreements furthering the 2001 Convention's objectives under Article 6 (p. 338). These have to be designed for better protection of the heritage, but Dromgoole foresees a role for such agreements to deal with issues of shared heritage or ‘particularly significant or vulnerable wrecks’ (p. 343).
Salvage is another topic dealt with at length, although the discussion in the main relates to Common Law States. Dromgoole acknowledges this, but it would have been interesting for an in-depth discussion also of how other States deal with the same issues. When the subject first came up for discussion in Paris, a number of States were plainly puzzled as to why it was on the agenda at all as it would not be relevant to UCH in their jurisdiction. How courts in the United States of America handle such cases involving salvage law is examined at some length as the federal law they apply ‘has been the law of choice for many shipwreck salvors in light of its historically favourable settlements’ (p. 167). Dromgoole reaches what can be the only correct decision on the value of these cases from the point of view of policy; namely, that the judiciary is ‘seriously fettered in what it can do to protect the public interest in historic wrecks. Ultimately, and at its core, the law of salvage is about financially incentivising recovery’ (p. 199). The 2001 Convention allows very little scope for the application of salvage law. Dromgoole would go further and recommends that States which do currently allow for its application should ‘make a clear and outright exclusion’ (p. 204). Only in this way can they be absolutely certain that there will be no future conflict between salvage law and obligations under the 2001 Convention.
The 2001 Convention states that one of the conditions on which salvage can be allowed is if ‘any recovery of the underwater cultural heritage achieves its maximum protection’ (Article 4(c)). This brings into play Rule 2 of the Rules Concerning Activities Directed at UCH contained in the Annex. It deals with what is commonly known as commercial exploitation which is prohibited by Article 2(7) of the 2001 Convention. Dromgoole begins her study of this issue with a broad analysis of policy and politics starting with a study of the various models that could be used for dealing with commercial exploitation. One in particular is treated at some length; namely, that which involves the sale of artefacts. She quotes at length from Greg Stemm, CEO of Odyssey Marine Exploration, who refines the concept by drawing a distinction between ‘cultural artefacts’ and ‘trade goods’ (p. 215). According to Stemm, the former should be protected while the latter can be sold. Such a policy was partially applied in the case of HMS Sussex in an agreement between Odyssey and the British Government which was roundly criticized by many archaeologists and greatly embarrassed the Government. A further quote is from Hutchinson who states that what is done with archaeological material should be appropriate to its significance (p. 223).
Unfortunately, the cut-off date for material in the book is July 2012. This means that there is little examination of events surrounding HMS Victory, Odyssey and the Maritime Heritage Foundation, a registered charity established by the Government especially to recover, preserve and display in public museums artefacts from the wreck. However, that being said, it is disappointing there was not more analysis of actions by the three parties up to that time (p. 239). As Dromgoole points out (p. 233), Rule 2 does not prohibit a for-profit operator undertaking recovery work on a wreck. However, there has to be full conformity with the Rules and be properly authorized. As there can be no sale of objects discovered, the operator cannot be paid in objects recovered and financing for the work must be arranged before this commences. The author does state that the provisions for commercial exploitation appear to have had little impact on the positions taken by the major maritime powers.
Further in the context of commercial exploitation, there is no discussion of how the 2001 Convention provisions would impact on the situation in places such as South East Asia where oversight is not as all-encompassing as in Europe, administration is more flexible, funding is not readily available and there is no long archaeological tradition, particularly as regards UCH. Dromgoole's insights into this particular problem would have been invaluable. Perhaps this may be redressed in the next edition.
Underwater Cultural Heritage and International Law is the only comprehensive work on this topic. It is well researched and well written. Much thought has gone into the arguments it presents. As such it is essential material for all lawyers, government advisors, administrators and archaeologists who wish to have further information and understanding of this topic. But is must be read with the understanding that much of the argument on sovereign immunity and jurisdiction is crafted with the major maritime powers in mind. Dromgoole is an advocate for maintaining the relevance of UNCLOS in the field of UCH, even with all its flaws.