The 2001 UNESCO-Convention on the Protection

of the Underwater Cultural Heritage:

Origin and Consequences
Thijs J. Maarleveld
Maritime Archaeology Program, University of Southern Denmark

Dette bidrag perspektiverer UNESCO’s 2001 konvention og ser på,

hvordan den passer sammen med nationale og international beskyttel-
sesinitiativer vedrørende kulturarven. I artiklen belyses konventionens
tilblivelse og baggrund, og der ses på såvel dens kortsigtede som lang-
sigtede konsekvenser. I anledning af ”De nordiske maritime museers
arbejdsmøde” på Færøerne lægges der i artiklen særlig vægt på situa-
tionen i den nordatlantiske region og konventionens konsekvenser for
maritime museer.

Introduction
On November 2nd 2001 the UNESCO-Convention on the Protection of
the Underwater Cultural Heritage was adopted by UNESCO’s General
Assembly. The notions that are formalized in this document reflect a
discussion on the significance of heritage -and specifically maritime her-
itage- that has spanned the second half of the twentieth century. Dis-
cussions are ongoing now that cautiously and one by one states decide
to ratify the Convention. Parts of that discussion seem to be nonsensi-
cal or futile from an archaeologist’s point of view. This may especially
seem to be true in the North, where a solid tradition of appreciation and
protection has qualified developments and has solidly defined roles of
museums and archaeologists alike. Discussions on treasure-hunting and
exclusive salvage rights that are sold to salvors or historically informed
entrepreneurs are easily dismissed as irrelevant. Hadn’t we long ago
agreed to do things differently? That may be so, but it actually makes
these discussions even the more relevant as they touch upon the essence
of what heritage management is about.
In many ways, the maritime arena is the zone where the mean-
ing of heritage for present-day society is most splendidly at stake. That
applies to the North-Atlantic as much as to any other region of the world.
After all, the regimes for archaeology, for museums and for the treatment


After the discovery of these objects, the Faroese government was contacted by a French
firm seeking a contract for the recovery of historic wreck-material. They assume that
the material issues from the Dutch East Indiaman Walcheren that disappeared in the
North Atlantic in 1667. The identification is highly questionable, but is in conformity
with treasure-hunting lore. Other firms have been looking for the Walcheren along the
Icelandic and Norwegian coasts. Photo: Føroya Fornminnisavn.

of heritage material are local or national regimes. They do not indisput-

ably apply when they are not backed up by regulations and jurisdiction.
This circumstance affects the way these regimes are or can be applied to
maritime heritage. Other regimes are all too easily put in their stead. The
ways in which this happens, conform to simply predictable templates.
Also, such mechanisms operate in the third world and in the North At-
lantic alike. The host of the present ‘arbejdsmøde’, the Faroe Islands
National Museum itself has recently been contacted by a company dis-
guised as a scientifically oriented foundation in order to boost their mu-
seum resources1. ‘Give us the exclusive right to look for and dispose of a
specific or any historic wreck in your waters and we will give you won-
derful things’ (keeping or selling the rest, of course). It is such a recog-
nizable approach, all around the world. The Faroese government was not
as naïve as to be convinced, but unfortunately many others easily are.

10
Today’s middlemen for the antiquities market are as charming and knowl-
edgeable as Belzoni or Lord Elgin’s middlemen were in the 18th and 19th
centuries2 and politicians do not necessarily see the long-term implica-
tions of what is presented as an exciting cultural adventure. Taking a short
term perspective and inspired by the economy of the day, they easily for-
get that it is both economically and culturally stupid to sell off your herit-
age when you can have it all.3 To cite the example of Lord Elgin again:
they take the disinterested standpoint of the 1799 governor of Athens, the
Voivode, regarding the integrity of the Parthenon, rather than the position
that Melina Mercouri so fervently took and defended 180 years later.4
Disinterest all too often leads to denial of the issues, to denial
of harm and loss as compared to the supposed (financial) gain. Should
we bother at all? It is evident that not every shipwreck-site is as iconic
as Athens’ Parthenon and its marbles. Nevertheless, I am convinced we
should be concerned, and the more so because of disinterest and denial.
After all, the reversed argument is just as powerful: isn’t the invisible
and vulnerable, but potentially valuable at least as worthy of our concern
as the very obvious?
In fact, there are more reasons why I am glad to present this
paper to a Nordic maritime museum audience. Nordic operators citing
museum interests are active all over the world, notably in Asia. Are they
the ambassadors of the way in which Nordic maritime museums want
to operate? They convince economically more strained and more naïve
governments than that of the Faroe Islands that with exclusive rights they
will produce wonderful things….. for the world antiquities market, pro-
ducing nice presents for museums (or officials) on the way. They cite mu-
seum curators who are specialized in (oriental) ceramics as their scientific
backing and forget to mention that this specialization is not necessarily
the same as a specialization in archaeological field research.5 The naivety
and vanity with which such specialists get involved beyond their com-
petences eclipses the naivety and vanity of the implicated politicians.6 A
last reason why it is useful to summarize and contextualize developments
here is that Norway took a very special and exceptional position in the
negotiations on the Convention as well as in the subsequent vote.7
In this presentation, the Convention and the way it came
about will be put in the perspective of other instruments developed by
UNESCO, as well as by the Council of Europe. Their activities are evi-
dently informed by affiliate NGO’s, such as ICOM and ICOMOS, whose
role will also be dealt with.

11
UNESCO, dialogue to counter conflict
The United Nations Educational, Scientific and Cultural Organization
was founded in November 1945 with hands-on idealistic motives that
are well-expressed by the organization’s motto: “Since wars begin in the
minds of men, it is in the minds of men that the defences of peace must
be constructed”. The potential explosiveness of heritage issues was im-
mediately in evidence. So were the use and abuse of heritage in creating
mindsets facilitating rather than preventing war.8 It was therefore quite
a logical consequence to define heritage, dialogue about heritage and
heritage protection as one of the more specific areas of attention with-
in UNESCO’s vast mandate. Creating consensus on the way in which
member-states would cope with issues relating to ‘heritage’ was a com-
mon sense way of dealing with questions of mutual respect and avoiding
direct discussions about ideology and religion.
Efforts to agree on guidelines and rules have first of all been
aimed at material remains. They addressed museum policies, monu-
ments, archaeology and built heritage. Although the significance of
material remains clearly depends on an ‘intangible dimension’, the ef-
forts were aimed at hands-on resolving of practical issues and potential
spheres of conflict.9 It was only at the very end of the twentieth century
that discussions were extended to include ‘intangible heritage’ as such.
Even in that debate, however, direct discussions about ideology and re-
ligion were avoided.10

The ‘Hague Convention’ 1954

The first legal instrument that UNESCO adopted in the field of herit-
age protection is the UNESCO Convention for the Protection of Cul-
tural Property in the Event of Armed Conflict, adopted at The Hague,
14 May 1954. It deals with war and peace and as such it is a sequel to
the (fourth) Convention of 1907 concerning the laws and customs of
warfare on land. It need not really concern us here, although it is evident
that this Convention has guided postwar heritage management practices
in many countries. It has influenced the practices of listing of monu-
ments and of buildings in which collections are being kept. All these are
adorned with the typical ‘blue shield’. The procedures for application
of the Convention were implemented for the first time during the 1967
Middle East conflict. Many conflicts have followed and the Convention
has since been updated with its ‘Second Protocol’, which entered into
force in 2004.

12
Here, it suffices to cite one of the considerations of the preamble, as
it clearly reflects a philosophy that is followed in later instruments. It
is certainly a consideration that is relevant for maritime heritage, and
it reads: “Being convinced that damage to cultural property belonging
to any people whatsoever means damage to the cultural heritage of all
mankind, since each people makes its contribution to the culture of the
world”. It is a consideration that binds 116 states.

The ‘New Delhi Recommendation’ 1956

Issues that specifically concern us here are more explicitly dealt with in
the UNESCO Recommendation on International Principles Applicable
to Archaeological Excavations, which was adopted on 5 December 1956
in New Delhi. It is not a Convention and so it is not a binding legal docu-
ment. Nevertheless it deserves more attention than it generally gets. In
fact it is hardly ever cited. I would be surprised if many of the present
audience knew of its existence. I am certain that many archaeologists,
while tacitly following its guidance, have never even heard of it. Despite
the fact that the document is 50 years old and despite the fact that it
was presumably drafted by generalists rather than by people intricately
familiar with archaeological practice11, the document compares favour-
ably with many of the guidance documents that have been produced for
archaeological practice in much later years.
The Recommendation deals with the responsibility of each coun-
try for the heritage within its border, with the authorization of foreign ex-
peditions, with involvement of local authorities and local archaeologists
in such cases, with integrity of the find assemblage and the excavation
archive, with the assignment of find-assemblages, reasonable time lim-
its for study and accessibility of sites and collections. It also deals with
repression of unauthorized and clandestine excavations as well as the il-
licit export of archaeological finds. Occupying states should refrain from
excavation in occupied territory and objects derived from clandestine
excavations or theft should be returned to their country of origin.
The only issue, in which the Recommendation is clearly a prod-
uct of its time, is where it deals with trade in antiquities. It outlines that
each UNESCO member state should consider the adoption of regulations
in a way so as not to encourage smuggling of archaeological material or
adversely affect the protection of sites. It should do so in the higher inter-
ests of the common archaeological heritage. However, at the same time,
foreign museums should be able to acquire archaeological objects in or-

13
der to fulfill their scientific and educational aims. This clause also stipu-
lates that these objects should not, in that case, be under any restrictions
due to the laws in force in the country of origin.12 In practice this puts
the burden of proper behaviour with the place of origin and its organi-
zation and laws, rather than with any acquiring institution. With regard
to underwater sites this underscores an inherent juridical weakness.13 It
also deepens, rather than bridges the potential gap between the collect-
ing strategies of museums and of archaeological instutions, wherever
these two are separate. Also, this clause of 1956 may have encouraged
internationally operating museums in their collecting policies during the
ensuing economic boom. These policies have since been responsible for
sharp international disputes and problematic national debates.14

Other Recommendations
Standards on how to deal with cultural heritage continued to be dis-
cussed and agreed upon at UNESCO. For a long time all these standards
took the form of Recommendations, which means that states members
of UNESCO agreed that this was the way things should be done, but that
the rules were not legally binding. Apart from the Recommendation on
International Principles Applicable to Archaeological Excavations, these
guidelines include a Recommendation concerning the Most Effective
Means of Rendering Museums Accessible to Everyone (1960), a Rec-
ommendation concerning the Safeguarding of Beauty and Character of
Landscapes and Sites (1962), a Recommendation concerning the Pres-
ervation of Cultural Property Endangered by Public or Private Works
(1968), a Recommendation concerning the Protection, at National Level,
of the Cultural and Natural Heritage (1972), Recommendations concern-
ing the International Exchange of Cultural Property and concerning the
Safeguarding and Contemporary Role of Historic Areas (1976), a Rec-
ommendation for the Protection of Movable Cultural Property (1978)
and finally a Recommendation on the Safeguarding of Traditional Cul-
ture and Folklore (1989).

The ‘Convention with the long name’ 1970

In 1970, however, a major step was taken. For the specific and economi-
cally rising sphere of dealing in art and archaeological objects, the soft
instrument of guidance through a Recommendation was no longer con-
sidered committing enough. In replacement of a Recommendation of
1964 the UNESCO Convention on the Means of Prohibiting and Pre-

14
venting the Illicit Import, Export and Transfer of Ownership of Cultural
Property, was adopted. It is usually known as the ‘Convention with the
long name’. As its long name suggests it deals exactly with those issues
on which the New Delhi Recommendation is unsatisfactory. These are
now settled in a legally binding document, a Convention. Or are they?
That begs the question. Even though the Convention already entered into
force two years after it had been adopted, its implementation has been
awkward to say the least. In fact the economic conditions favourable for
the antiquities market continued to grow. ‘Subsistence digging’ by the
poor and powerless who market any antiquities they can unearth15, well-
organized high-tech excavations aimed at rapidly reducing archaeologi-
cal sites to saleable objects and a network of whitewashing and interna-
tional trade continued to grow accordingly.16
The Convention has inherent weaknesses. Part of these have
been addressed by the negotiation of a supplementary Convention ad-
dressing the private law issues involved. This task was taken up by the
International Institute for the Unification of Private Law (UNIDROIT)
and resulted in the UNIDROIT Convention on Stolen or Illegally Ex-
ported Cultural Objects (Rome, 1995).17 The two Conventions need to
be implemented together, as they are complementary, but by many states
they are not.18 In fact, the very reluctant ratification and implementation
of the 1970 Convention itself has been a major obstacle for decades.19
This all means that the production of archaeological objects for the mar-
ket has not stopped despite the existence of the Convention for over 35
years. The inconsistent territorial application means that tomb-raiding,
treasure-hunting, smuggling and the falsification of provenance and ped-
igree continue unabatedly and that the auction houses flourish as never
before. The climate, however, seems to be changing. The public debate
has become more extended.20 In this debate, disinterest and denial seem
to make way for concern. Although the process has been slow, 110 States
have presently joined the Convention.

The ‘World Heritage Convention’ 1972

One could contend that the UNESCO Convention concerning the Pro-
tection of the World Cultural and Natural Heritage of 1972 does not deal
with issues directly affecting archaeological practice and that therefore
it should concern archaeologists less than many of the above Recom-
mendations or the 1970 Convention. However, the Convention has such
impact and guides so much energy and thinking in heritage management

15
that it would be a stupid position to maintain. After all, the Convention
has proven to be the instrument par excellence that puts heritage issues
on the political agenda. How did it come about?
Besides Recommendations, practical engagement had also fig-
ured on the agenda at UNESCO in the sixties. Through UNESCO’s of-
fices a large international rescue-operation for the temple of Abu Simbel
in Nubia had been organized. It became an icon for the fact that the needs
of development and the needs of heritage preservation should in one way
or another be reconciled. It was after all, the building of the Aswan High
Dam and the ensuing creation of the vast reservoir Lake Nasser, which
threatened this and other temples. Originally, the plan had not taken
any cultural impacts into account.21 The Recommendation concerning
the Preservation of Cultural Property Endangered by Public or Private
Works of 1968 was a direct result of this consorted action. Other calls
for engagement followed, notably related to Carthage, the Borobudur
and Angkor Wat.
What this all reflects is highly relevant for the protection of
maritime heritage, as we will see. The sentiment of common respon-
sibility for heritage in occupied territory and zones of war, as accepted
in the Hague Convention, was gradually extending to a general feeling
of ‘common ownership’. This means joint responsibility, also in cases
where it is not war, but other agents that threaten it. This means joint
responsibility also if it is not war but other reasons that create a vacuum
of power and jurisdiction.
An interesting feature of the World Heritage Convention is that
besides codifying past practice of UNESCO addressing cultural heritage,
it extends the principles of co-operation to the natural heritage, ‘whose
protection is obviously all the more necessary in that pollution of the
environment has grown considerably worse’.22 We must remember that
the Convention was adopted in the very year that the Club of Rome
published its influential report.23 Integration of the two concerns has not
been very marked, but has certainly been a feature in discussions on
World Heritage status for the Wadden Sea.24
The Convention is meant to apply to the modern parallel of the
Seven Wonders of the Ancient World, as allegedly first suggested by
Herodotus. It therefore sets a procedure of determining the ‘Outstand-
ing Universal Value’ of the heritage in question before it is inscribed in
the register, the World Heritage List. The list has become UNESCO’s
trademark. Inscription has become as prestigious as to indeed produce

16
an intense and politically laden dialogue between States Parties in the
meetings of the World Heritage Committee. National pride and economi-
cal benefits (tourism!) dominate the debate, which is also skillfully di-
verted to include the original purposes of UNESCO: mutual respect and
peaceful negotiation.25 The World Heritage List presently includes 830
wonders of the world in 138 countries. That is a far outcry of the ancient
seven26, but better reflects present-day thinking on the diversity of cul-
ture.27 The Convention binds 183 countries. UNESCO has 191 member
states. The UN has 192.
Although the ‘World Heritage List’ and the criterion of ‘Out-
standing Universal Value’ definitely are the most conspicuous aspects of
the UNESCO Convention concerning the Protection of the World Cul-
tural and Natural Heritage, it is nevertheless its focus on co-operation
and mutual assistance that is most characteristic and important. It is the
basis on which further standards were developed.

The ‘Underwater Convention’ 2001

In addressing the destructive influence of the antiquities market, the 1970
Convention definitely has a strong weakness where the underwater herit-
age is concerned. Its title is UNESCO Convention on the Means of Pro-
hibiting and Preventing the Illicit Import, Export and Transfer of Owner-
ship of Cultural Property. This seems to be rather detailed and accurate.
However, the term ‘illicit’ reflects the fact that the Convention, which is
an agreement between states, presupposes that states make sure that what
is undesirable or condemnable is made illegal. If they choose not to de-
velop and implement their own standards and laws, what can the interna-
tional community do? It also presupposes that all archaeological heritage
has a government, a territorial custodian to look after it. Of course there is
the unfortunate exception of contested war zones and occupied areas, but
that exception is provided for by the Hague Convention. What, however,
of custodianship for heritage outside the borders of any state?
If no law applies, then high-tech excavations in order to rapidly
reduce archaeological sites to saleable objects can be organized at will.
The term ‘illicit’ simply does not apply, however contrary the operations
may be to all the discussion relating to ‘common ownership’ of the ‘com-
mon heritage of mankind’. The charming and knowledgeable middle-
men of the antiquities trade go to great length to explain that everything
is completely legal and that looting and selling the heritage is actually all
for the better, …. just as Belzoni or Lord Elgin had done in their day. But

17
The concept of the Freedom of the High Seas was firmly established in international law
Hugo de Groot or Grotius in his Mare Liberum of 1609. This picture by Michiel Jansz.
van Mierevelt (1567-1641) was done 22 years later (Rijksmuseum, inv.nr. SK-A-581).

does no law apply at sea? Well, the situation is different to say the least.
Authority, responsibility and jurisdiction have not been divided amongst
autonomous states. Instead, many dealings at sea are governed by the
doctrine of the ‘freedom of the high seas’. The concept was substantiated
in juridical terms in the early seventeenth century by Hugo Grotius, who
is considered to have laid some of the foundations of international law
and it has governed international thinking ever since.28

18
Until the middle of the 20th century coastal states claimed jurisdiction
only over a narrow strip of territorial sea and of course on board of every
ship flying its flag. Even in the territorial seas any ship can go, as long as
it is on ‘innocent passage’. Since then, jurisdictions have considerably
been extended in order to deal with offshore mining, abate conflict over
fisheries and regulate environmental issues. The way this has been done
has been codified in the United Nations Law of the Sea Convention that
was adopted on December 10, 1982 at Montego Bay, Jamaica, after very
complicated negotiations that had spanned over twenty years. A charac-
teristic of the Law of the Sea is that jurisdiction only extends to specific
zones with maximum limits and only for the specific purposes for which
these zones are defined. Accordingly, jurisdiction over the Continental
Shelf (maximum extent to the rim of the shelf) is limited to jurisdiction
over the exploration and exploitation of mineral resources, jurisdiction
over the Exclusive Economic Zone (maximum extent 200 miles) is lim-
ited to jurisdiction over other resources, and so on. It is only in the ter-
ritorial waters (maximum extent 12 miles) that the coastal state has full
jurisdiction.
And what about heritage and archaeology? Hadn’t that been
thought of? Yes it had, but only in a confused manner. Considering that
the Law of the Sea Convention was finalized in the year that Melina
Mercouri started her campaign for repatriation of the Elgin Marbles it
is not completely surprising that archaeology, clandestine excavations,
objects and smuggling were more or less seen as synonymous by the
negotiating diplomats.29 Anyway, one of the ways in which heritage is
dealt with, equates archaeology with illicit trafficking and creates the
legal fiction that states may assume an infringement in a zone contiguous
to its territorial waters (maximum extent 12 + 12 = 24 miles) to be an
infringement that took place within its territory. The Contiguous Zone,
if proclaimed, gives jurisdiction only in matters of smuggling and of
archaeology.30 But what about heritage in other zones? Or in the ‘Area’,
the seabed and ocean floor, and subsoil thereof beyond the limits of na-
tional jurisdiction? The Law of the Sea also stipulates that ‘States have a
duty to protect objects of an archaeological and historical nature found
at sea and shall co-operate for this purpose’.31 It does not stipulate, how-
ever, how this should or could be done. Consequently, very little was
achieved. In practice the underwater heritage is unprotected by the Law
of the Sea. Everyone can do as they like and it will still pass as ‘innocent
passage’.

19
A schematic view of the zones of maritime jurisdiction according to the United Nations
Law of the Sea Convention, such as they are discussed in the text. After Lund 2006.

In 2001, the evident gap in the system of heritage protection world wide
was bridged by the adoption of the UNESCO Convention on the Pro-
tection of the Underwater Cultural Heritage.32 In line with the earlier
Conventions and Recommendations the joint responsibility for heritage
is underlined. Even though the Convention acknowledges the specific
interest of states with a ‘verifiable link’ with the heritage in question,
common interest and joint responsibility are nevertheless taken as its
basis. For this to work, the Convention provides for a system of infor-
mation exchange and international co-operation. But there is more. The
Convention includes an Annex, which is an integral part it. The An-
nex contains ‘operational rules’. In practice they provide a shorthand
professional standard, including ethical conduct. They are a one to one
translation in juridical terms of the ICOMOS Charter of 1996.33
The Convention overrules the rules of salvage.34 This is useful in
that entrepreneurs and middlemen in the treasure-hunting industry have
consistently cited such salvage rules to prove that their actions were both
acceptable and legal.35 Another important feature is that the Convention
distinguishes between ‘Activities incidentally affecting Underwater Cul-
tural Heritage’ and ‘Activities targeted at Underwater Cultural Heritage’.
In projects that may incidentally affect heritage, it has already become
customary in many places to include impact assessment and mitigation
measures. These follow their own systematics which are quite analogous
to measures relating to projects affecting heritage on land.36 ‘Activities
targeted at Underwater Cultural Heritage’ are another matter. There must
be good reasons for a ‘lustgrabung’ and producing artefacts for the an-
tiquities market can no longer be considered one of them.

20
A very important aspect of the adoption of the ‘Underwater Convention’
in 2001 is that all the states present at the vote, even those states voting
against it37, accepted and declared to unilaterally live up to the opera-
tional rules of the Annex. They have committed themselves politically to
adhere to these basic standards.

Council of Europe, forging unity in a torn continent

Although there is no need to thoroughly scan all the documents produced
by the Council of Europe, it is nevertheless useful to give it a moment’s
thought. For one thing, it was at the Council of Europe that specific
needs of underwater heritage management were first formulated in an
international political setting. For another, much of today’s archaeologi-
cal practice in Europe is adapted to conform to outlines agreed upon at
the Council. ‘Europe’ also has its specific set of regulations in order to
restrict smuggling and condemnable trade in antiquities, but here these
will be left aside.38
The Council of Europe was founded in 1949 with the aim ‘to
achieve a greater unity between its members for the purpose of safe-
guarding and realising the ideals and principles which are their common
heritage and facilitating their economic and social progress’. Assertion
of human rights, parliamentary democracy and the rule of law and the
standardization of social and legal practices were its main aims in the
postwar period. The promotion of (awareness of) a ‘European identity
on the basis of shared values cutting across different cultures’ was iden-
tified as necessary for this purpose. As at UNESCO, dealing with herit-
age issues is an expedient way to tackle identity and mutual respect. In
1949 the Council rallied 10 European countries; it has since grown to
encompass 46 countries, including 21 countries from Central and East-
ern Europe. In other words, it covers a far larger area than the 27 mem-
bers of the European Union, for which in many ways the Council is a
trailblazer.
The Council has addressed many aspects of cultural heritage,
its protection and its management, both in its pursuit of standardization
and in its ambition to define a ‘common European heritage’. In 1969
it adopted the European Convention on the Protection of the Archaeo-
logical Heritage. The Convention is not very substantive and it did not
produce an alignment in the different traditions of archaeology and ar-
chaeological heritage management across Europe. However, it did pro-
voke discussion, especially in the eighties when the need for integration

21
of heritage management and planning was urgently felt in archaeological
circles.39 Subsequently the Convention was revised, with profound con-
sequences all over Europe.

‘Recommendation 848’ 1978

In 1978 it was the Council’s Parliamentary Assembly that adopted ‘Rec-
ommendation 848, on the underwater cultural heritage’. It was the result
of a report that the Assembly had commissioned in order to find a com-
mon European approach to heritage issues in the UN Conference on the
Law of the Sea that has been alluded to above.40 The Report and the
Recommendation advised that a European Convention on the Underwa-
ter Cultural Heritage be drafted. It also advised to ‘negotiate agreement
between member states on the declaration of national cultural protection
zones up to the 200-mile limit, wherever that limit is in keeping with
geographical realities, as a basis for the implementation of the proposed
convention’. Acceptance of such a protection zone proved one step to far
in pushing back the ‘freedom of the high seas’ and instead the Law of the
Sea Convention ended up with the provisions we discussed above, and
with a cultural protection zone of 24 miles at a maximum.
In the meantime, before the Law of the Sea Convention was
concluded, the Council of Europe started the negotiation of a European
Convention on the Underwater Cultural Heritage. The text was ready in
1985.41 It never came to be adopted. It accepted the regime of UN Law
of the Sea Convention and referred to it. This was not acceptable to the
delegation of Turkey42 and it was basically for technical political reasons
that the Convention was never opened up for signature.
As a follow-up of ‘Recommendation 848’ the problems of un-
derwater heritage management were taken more seriously in many Euro-
pean countries, whereas the Council of Europe itself engaged in targeted
capacity building. It was thus indirectly that the Recommendation had
most of its influence.

The ‘Valletta Convention’ 1992

The European Convention on the Protection of the Archaeological Herit-
age [revised] is the last Convention I will mention in this contribution.
It is also, most probably, the first with which an archaeological audience
is relatively familiar. After negotiations at the Council of Europe it was
concluded in Malta in 1992. It has guided the integration of heritage
management in planning, seeing heritage protection as one of many in-

22
terests to be balanced and seeing the costs involved as integral to the
planned development. It motivated stakeholder involvement. It has thor-
oughly influenced the development of archaeological consultancy and
the timely assessment of impacts on the cultural heritage. It is there-
fore particularly relevant for ‘Activities incidentally affecting Cultural
Heritage’. The fact that the 1985 draft for a European Convention on
the Underwater Cultural Heritage has been taken into account during its
preparation, ensured that this also applies to ‘Activities incidentally af-
fecting Underwater Cultural Heritage’.43
As a downside, all discussion relating to its implementation dis-
tracted attention from ‘Activities targeted at Heritage’. On land, this is
not really a problem, as most interventions are related to ‘incidentally
affecting’ activities anyway. For the underwater cultural heritage, such
activities are likewise important. But the problems of accessibility, rec-
reational use and all means of activities targeted at it are at least as fun-
damental.44 It is for that reason that it is a major challenge to make sure
that the ratification and implementation of the 2001 UNESCO Conven-
tion will be taken up with as much emphasis as was given to the ‘Valletta
Convention’.

ICOMOS, ICOM, ICMM, professional NGO’s
A discussion on the origin of the 2001 UNESCO-Convention is not com-
plete without mentioning non-governmental organizations. Several have
been involved. At a preliminary stage, exercises by the International
Law Association (ILA) have been crucial. However, let me limit myself
to nongovernmental organizations of heritage professionals that oper-
ate world-wide. ICOM, as you all know, is the International Council of
Museums and ICMM is the more specialized International Council of
Maritime Museums. Both deal with collections of movable heritage and
ICOMOS, the International Council of Monuments and Sites, deals with
unmovable heritage and its specific problems of in situ management,
consolidation and restoration. Both ICOM and ICOMOS are a UNESCO
affiliate, which means that UNESCO seeks professional advice in the
bosom of these two globally operating organizations.
In the late seventies, as we have seen, the problems of under-
water cultural heritage were more often than not associated with import,
export and transfer of ownership. It is not surprising therefore that ‘Rec-
ommendation 848’ advised not only to draft a European Convention on
the Underwater Cultural Heritage, but to encourage its administration

23
and application at a regional level in cooperation both with UNESCO
and ICOM. In the absence of relevant jurisdiction, the term ‘illicit’ does
not fully apply to much of the market-supply of archaeological objects
from underwater sites. On the other hand, the related activities can hardly
be regarded as ‘innocent passage’. Reduction of archaeological sites to
saleable objects is undesirable and condemnable and the proceeds must
consequently be regarded as ‘tainted’45. ICMM deserves the credit that it
first banned the acquisition of such objects by its membership. It did so
in its Barcelona Resolutions on Underwater Archaeology of 1993.
In the meantime UNESCO had approached ICOMOS for a
more encompassing advice. In 1992 the International Committee on
the Underwater Cultural Heritage (ICUCH) was formed as a specialist
ICOMOS Committee. Its first mission was to produce a simple set of
professional standards. This resulted in the International Charter on The
Protection and Management of Underwater Cultural Heritage that was
adopted by the 11th General Assembly of ICOMOS in Sofia, Bulgaria in
October 1996. It is a document that every maritime archaeologist should
know by heart (and preferably live up to!).
The ICOMOS Charter has been vital for the development of
the 2001 UNESCO Convention. Its guidance has been transposed article
by article into the operational rules of the Annex, which is part of the
Convention and to which each and every party in the negotiations has
subscribed. Even those states that do not want to commit themselves to
the Convention itself have declared allegiance to the Annex.

Consequences and concluding remarks

There are two major developments in the world that have thoroughly
influenced the way the way in which cultural heritage is looked upon
during the last fifty years. Both have guided the successive formulation
of the policy guidance and legal instruments that have been presented
above. Both are relevant for the future and need to be reconciled.
The first development is a conceptual one. Traditions, heritage and herit-
age management used to be related to the identity of the Nation State.46
In consequence, their management was a national endeavour, the pre-
rogative of the State. In many ways, this notion persists. However, the
notions that ‘… cultural property belonging to any people whatsoever…
means … cultural heritage of all mankind …’, that ‘ownership’ of herit-
age is not exclusive47 and that taking care of heritage is a joint responsi-
bility, have thoroughly established themselves during the second half of

24
the 20th century. For heritage under water this development has particular
consequences. Exclusive appropriation becomes even less acceptable.48
Management of protection, accessibility and use is a public responsibil-
ity as before. That responsibility, however, is not exclusively taken on
behalf of the responsible public body’s constituency. It is to be taken on
behalf of a wider range of stakeholders nationally and on behalf of stake-
holders in other states. Maritime heritage has links all over the world.
The system devised in the 2001 UNESCO Convention is that coastal
states shall protect ‘for the benefit of humanity’ and shall ‘co-ordinate’ on
behalf of other states with a ‘verifiable link’ to that heritage. More often
than not, such a ‘verifiable link’ can only be surmised or corroborated af-
ter the site has been known for some time. Keeping track of information
and organizing site assessment and survey is therefore indisputably the
responsibility of each coastal state’s ‘competent authority’. Elsewhere I
have argued, that whatever a country’s internal organization and what-
ever the way it wishes to organize its archaeology, a central curatorial
office and role is essential for the international system to work.49
The second development is more down to earth. The economic
boom of the fifties and sixties has thoroughly influenced archaeological
heritage management. For one thing the post-war reconstruction started
urban archaeology in Europe. Subsequent developments created the no-
tion of rescue archaeology and ongoing intensification has led to preven-
tive approaches and the integration of archaeology in planning as codi-
fied in the Valletta Convention. Simultaneously, however, the economic
boom has also intensively stimulated the antiquities market and the ex-
ploration of the underwater world. As a consequence heritage manage-
ment has been put under stress. International co-ordination has become
an absolute must. For heritage under water this development has partly
worked in the opposite direction. ‘Activities targeted at Underwater Cul-
tural Heritage’ have intensified enormously. Despite the norm and de-
spite many influential examples to the contrary, exclusive appropriation
has been a characteristic feature of this development. Many museums
and governments have been lured into accepting this, laughing away the
consequences in disinterested denial.
In a globalizing world, however, where heritage responsibilities
are taken on behalf of all, one can no longer hide behind the fact that it
happens elsewhere in the world, or in a zone where control is difficult
anyway. Collecting strategies that are inconsistent with wider heritage
policies can no longer go unnoticed. They strike at the credibility of all

25
other endeavours by such a government, such an official or museum.
This is also one of the reasons why dealings with underwater heritage are
relevant to all heritage policies and to all heritage professionals and have
consequences for all heritage debate. This is evidently the more so since
maritime heritage has a huge intrinsic quality.50
In light of all this, this discussion on the origin and consequenc-
es of the 2001 UNESCO-Convention on the Protection of the Under-
water Cultural Heritage ends with the consequences for us all, who in
some way or other are involved in maritime heritage management. With
the Convention and all related instruments, a system has been devised
that can guide our actions. It is likely that it is going to be the system
of the future. It addresses ‘Activities incidentally affecting Underwater
Cultural Heritage’ and ‘Activities targeted at Underwater Cultural Herit-
age’. How long it will take to implement, is dependent on many factors.
The Convention will enter into force as soon as 20 states have ratified.

For the full implementation of the 2001 UNESCO Convention a new (and larger)
generation of maritime archaeologists needs to be trained. The Maritime Archaeology
Programme at the University of Southern Denmark was set up for this purpose. It is
characterized by a practical approach, fieldwork and a course providing for professional
diving qualifications (Photos: SDU).

26
So far it has been ratified by 15.51 It is a positive sign that most of these
ratifications occurred over the last year and a half. In December 2006,
moreover, the United Nations’ General Assembly unanimously backed
the Convention with a Resolution.
Full implementation of a Convention like this, may take quite
some time. The other examples have shown that. The process can be
delayed and accelerated. It is important that we all are aware that each
and every country represented at UNESCO during the 2001 General As-
sembly has committed itself to the principles set out in the Annex of the
Convention, even if they abstained in the vote or had problems with the
Convention as such. Reminding ourselves and our governments of this
fact will help to create consistency in decisions.
Full implementation will mean that the maritime archaeological
effort needs to be extended. A need will arise for a new (and larger) gen-
eration of maritime archaeologists. In Europe, this need already arises as
a consequence of the full implementation of the Valletta Convention in
the planning of ‘Activities incidentally affecting Heritage’, above water
as well as below. It is to this background that I decided to move to Esb-
jerg, where the occasion arose to contribute to the education of this new
generation.52

Literature / Further Reading

Dromgoole, S. (ed.), The Protection of the Underwater Cultural Herit-
age. National Perspectives in Light of the UNESCO Convention 2001,
Leiden / Boston 2006.
Grenier, R., D. Nutley & I. Cochran (eds.), Underwater Cultural Herit-
age at Risk: Managing Natural and Human Impacts, Paris 2006 (also:
http://www.international.icomos.org/risk/2006/fulldocan.pdf)
Lowenthal, D., Possessed by the past, The Heritage Crusade and the
Spoils of History, New York 1996.
Ng, L.C.W., Conservation and management of ceramic archaeological
sites along the maritime silk route, Proceedings of ICOMOS 15th Gen-
eral Assembly and Scientific Symposium, Xi’an 2005, p. 991-1000.
O’Keefe, P.J., Shipwrecked Heritage: A Commentary on the UNESCO
Convention on Underwater Cultural Heritage, Leicester 2002.
Prott, L.V. (ed.), Finishing the interrupted voyage, Papers of the UNESCO
Asia-Pacific Workshop on the 2001 Convention on the Protection of the
Underwater Cultural heritage, Leicester 2006.
Rowan, Y. & U. Baram (eds.), Marketing Heritage, Walnut Creek 2004.

27
Scarre, Chr. & G. Scarre(eds.), The Ethics of Archaeology. Philosophical
Perspectives on Archaeological Practice, Cambridge 2006.

Notes
1
As brought up during the meeting by Símun Arge.
2
Atwood, R., Stealing History, New York 2004; Goddio, F. et al., Lost at
Sea: The Strange Route of the Lena Shoal Junk, London 2002; Jörg, C.J.A,
The Geldermalsen, History and Porcelain, Groningen1986.
3
Why sell off your heritage if you can have it all is the ICOMOS slogan to
promote negotiation and adoption of the Convention.
4
Kersel, M., The Politics of Playing Fair, or, Who’s Losing Their Marbles?,
Rowan, Y. & U. Baram (eds.) Marketing Heritage, Walnut Creek 2004, p.
41-56; Lowenthal, D., Possessed by the Past, New York 1996, p. 200.
5
e.g. Jörg, C.J.A. & M. Flecker, Porcelain from the Vung Tau
Wreck : The Hallstrom Excavation, Singapore 2001.
6
Renfrew, C., Loot, Legitimacy and Ownership: The Ethical Crisis in Ar-
chaeology, London 2000.
7
The Norwegian delegation claimed that setting rules for underwater herit-
age would upset the precious balance of the Law of the Sea Convention. It
thought UNESCO incompetent in dealing with Law of the Sea matters and
pleaded for negotiations to be relocated to the UN itself. At the UN Nor-
way continued to protest against UNESCO’s initiative and it was only in
December 2006 that the General Assembly of the UN unanimously adopted
a Resolution backing up the UNESCO 2001 Convention. See also Kvalø,
F. & L. Marstrander, Norway, S. Dromgoole (ed.), The Protection of the
Underwater Cultural Heritage, Leiden/Boston 2006, 217-228.
8
Cf. Kater, M.H., Das ‘Ahnenerbe’. Die Forschungs- und Lehrgemeinschaft
in der SS. Organisationsgeschichte von 1935 bis 1945, diss. Heidelberg,
1966; Pieper , P., Th.J. Maarleveld und A.J.T. Jull, Ideologie und Fälsc-
hung. Abschließendes zum Komplex der sog. Deventer-Knochen, Archäol-
ogisches Korrespondenzblatt 21/2, 1991, 317-322.
9
Luxen, J.-L., The Intangible Dimension of Monuments and Sites, with Refer-
ence to the UNESCO World Heritage List, ICOMOS News, 10/2, 2000 (also:
http://www.international.icomos.org/victoriafalls2003/luxen_eng.htm).
10
Strongly promoted by Director-General Koïchiro Matsuura, who came into
office in 1999, these discussions resulted in the adoption of the UNESCO
Convention for the Safeguarding of the Intangible Cultural Heritage in Oc-
tober 2003. Although debate has been awkward, the final content of the Con-
vention is not very contentious and it entered into force on April 26 2006.

28
11
This is a guess. I have no information whatsoever on the drafting process of
this document.
12
Art. 28.
13
See below.
14
For a recent example: C. Stockmann & L. Davidsen, Glyptoteket udstiller
tyvekoster, Politiken, 1. dec. 2006.
15
The phrase is from Lowenthal, D., Possessed by the Past, New York 1996.
16
Brodie, N., J. Doole P. Watson, Stealing history : the illicit trade in cul-
tural material, Cambridge 2000; Brodie, N., J. Doole & C. Renfrew, Trade
in illicit antiquities: the destruction of the world’s archaeological heritage,
Cambridge 2001.
17
UNIDROIT is an independent intergovernmental organization, which has its
headquarters in Rome.
18
Browne, A., UNESCO and UNIDROIT: the role of conventions in eliminat-
ing the illicit art market, Art, Antiquity and Law, 7 (2002), p. 379-385.
19
Nordic countries have endlessly postponed ratification. Finland finally
joined in 1999, Denmark and Sweden in 2003 and Iceland and Greenland in
2004. Norway and the Faroe Islands did not join so far. Despite their strong
tradition in heritage protection, the Nordic countries join up with the Euro-
pean countries with the largest share in the antiquities market, such as Swit-
zerland, the United Kingdom and The Netherlands. The United Kingdom
accepted the Convention in 2002, Switzerland in 2003. The Netherlands has
so far neither accepted nor ratified.
20
Note 14 above.
21
The rescue operation was actually more extensive, but not comprehensive. A
range of excavations were carried through and a range of monuments were
saved. Some temples, such as Abu Simbel were re-erected near their original
locations. Others were moved to Khartoum. Other small temples were do-
nated to foreign governments that had assisted in the rescue operation. These
can now be admired in Madrid, Turin, New York, Berlin and Leiden.
22
UNESCO, Conventions and Recommendations of Unesco concerning the
protection of the cultural heritage, second edition, Paris 1985, p. 75 (IV:
A.5.Intro.1).
23
Meadows, D.H., D.L. Meadows, J. Randers & W.W. Behrens III, Limits to
Growth, Rome 1972.
24
Maarleveld, Th.J. & J.-K.A. Hagers, Protecting Cultural-Historic Values:
Legal Restrictions, Legal Cooperation, International Commitments, The
National Forest and Nature Agency, Workshop on The Cultural

29
 Heritage in The Wadden Sea Region, Ribe September l0th - 12th 1997,
Abstracts and Lectures, København 1997, p. 1-12.
25
The discussions on the silk route, including heritage spanning Chi-
na, Central Asia, the Middle East and the Balkan is a good example:
Lawton, J., Silk, Scents and Spice. Tracing the World’s Great Trade
Routes, Paris 2004; Feng Jing & Ron van Oers, The Chinese Silk
Road as World Cultural Heritage Route, UNESCO Mission Report,
Paris 2004. The interesting thing is that none of the states involved really
want to be left out. As such, the project’s process may have more political
impact than its final result. Similarly interesting is the nomination of the
imperial road of the Inca’s, Qhapaq Nan, spanning Colombia, Ecuador,
Peru, Bolivia, Chile and Argentina. Peaceful relationships may perhaps
less be at issue, but besides the narco industry and smuggling, some of
these countries have an ongoing problem with illegal but strong and para-
militarily supported, treasure-hunting feeding the first world market.
26
Helden, W.A. van, Een halve eeuw Unesco, Den Haag 2001, p. 35.
27
Nevertheless the representativeness is constantly debated. The distribution
is skewed towards Europe and the unbalance has been occasion for starting
the ‘global strategy’ in order to involve all peoples of the world. Increased
attention for the intangible heritage is intricately related (http://whc.unesco.
org/en/globalstrategy).
28
Groot, H. de, Mare Liberum, Leiden 1609.
29
The subject was brought up at a very late stage in the negotiations and this
was done by the Greek delegation. Platzöder, R., Third United Nations
Conference on the Law of the Sea: Documents, Vol. XII, New York 1987, p.
299-303.
30
Denmark has installed a Contiguous Zone as Maritime Archaeological
Protection Zone in 1999; Norway did so in 2004.
31
UNCLOS III, Art. 303 (1).
32
Scovazzi, T., Convention on the Protection of Underwater Cultural Herit-
age, Environmental Policy and Law, 32/3-4, 2002, p. 152-157; Lund, C.,
The making of the 2001 UNESCO Convention, Prott, L.V. (ed.), Finishing
the interrupted voyage, Papers of the UNESCO Asia-Pacific Workshop on
the 2001 Convention on the Protection of the Underwater Cultural herit-
age, Leicester 2006, p. 14-19.
33
See below.
34
Carducci, G., The UNESCO Convention 2001: a Crucial Compromise on
Salvage Law and The Law of Finds, Prott, L.V. (ed.), Finishing the inter-
rupted voyage, Papers of the UNESCO Asia-Pacific Workshop on the

30
 2001 Convention on the Protection of the Underwater Cultural heritage,
Leicester 2006, p. 27-31.
35
Whereas in fact the International Convention on Salvage 1989, also has a
provision to exclude its application to heritage over 100 years old.
36
Maarleveld, Th.J., Mitigation as archaeological strategy. The Bulletin
of the Australasian Institute for Maritime Archaeology 27 2003, p. 135-139.
37
Venezuela and Turkey, who did not accept any reference to the Law of the
Sea Convention which they oppose and Norway and Russia, who did not
accept UNESCO’s role in maritime affairs, cf. note 7.
38
Such specific regulations are governed by the European Union rather than
the Council of Europe. They are the ‘European Union Council Regulation
(EEC) No 3911/92 of 9 December 1992 on the export of cultural goods’
and the ‘Council Directive 93/7/EEC of 15 March 1993 on the return of
cultural objects unlawfully removed from the territory of a Member State’.
39
Cleere, H. (ed.), Approaches to the Archaeological Heritage, Cambridge
1984; Trotzig, G. and G. Vahlne (eds.), Archaeology and Society, Large
scale rescue operations - their possibilities and Problems, Stockholm 1989.
40
Doc. 4200 The Underwater Cultural Heritage, Report of the Committee on
Culture and Education (Rapporteur: John Roper), Strasbourg 1978.
41
CAHAQ, Ad Hoc Committee of Experts on the Underwater Cultural Herit-
age, Final Activity Report, (CAHAQ(85)5), Strasbourg 1985.
42
Cf. Note 37 above.
43
In practice this also means ‘Activities incidentally affecting Underwater
Cultural Heritage’ beyond the 24 mile archaeological protection zone.
Developments on the European ‘Continental Shelves’ and in the European
‘Exclusive Economic Zones’ are permit bound and require impact assess-
ment and mitigation, both on the basis of national legislation and on the
basis of the Convention on Environmental Impact Assessment in a Trans-
boundary Context (Espoo, 1991), to which the EU is a party.
44
Maarleveld, Th.J., Chapter 8, S. Dromgoole (ed.), The Protection of the
Underwater Cultural Heritage. National Perspectives in Light of the
UNESCO Convention 2001, Leiden / Boston 2006, p. 161-188.
45
‘Tainted’ is the term use in the United Kingdom’s Dealing in
Cultural Objects (Offences) Act 2003, an act that was put in place for the
implementation of the 1970 UNESO Convention. According to the Act it
is immaterial whether the site from which the object was removed… ‘is
above or below water’.
46
Hobsbawm, E. & T. Ranger (eds.), The invention of Tradition, Cambridge
1983.

31
47
McBryde, I. (ed.), Who owns the Past, Melbourne 1985.
48
See also Carman, J., Against Cultural Property, London 2005.
49
Maarleveld, Th.J., ’Maritime Management Matters’, Chapter 6 in: J. Satch-
ell & P. Palma (eds.), Managing the Marine Cultural Heritage, Council
for British Archaeology Research Report 153, York forthcoming 2007, pp.
49-58.
50
Mentioning the Ulu Burun shipwreck of the 14th century BC (e.g. http://ul-
uburun.de/) is enough to underscore this, but so is mention of the appalling
scam on the recently emptied site of a 10th century ship with middle eastern
and Chinese cargo in the Java Sea (http://en.epochtimes.com/news/5-
10-29/33803.html; http://news.bbc.co.uk/2/hi/asia-pacific/6162804.stm),
or the 18th century ‘Rooswijk’ (Duivenvoorde, W. van, ‘Dutch Ministry
of Finance Violates Agreement on Submerged Cultural Heritage’ The
INA Quarterly Vol. 33. 1; Spring 2006 ; http://domeinen-oz.nl/default.
asp?CMS_ITEM=683B41BB5444E3B9BACB94BE7FICD45X176X4920
4X94; http://www..newworldtreasures.com/rooswijk.htm).
51
Status 31 July 2007: Panama (20/05/2003), Bulgaria (06/10/2003), Croatia
(01/12/2004), Spain (06/06/2005), Libyan Arab Jamahiriya (23/06/2005),
Nigeria (21/10/2005), Lithuania (12/06/2006), Mexico (05/07/2006), Para-
guay (07/09/2006), Portugal (21/09/2006), Ecuador (01/12/2006), Ukraine
(27/12/2006), Lebanon (08/01/2007), Saint Lucia (01/02/2007), Romania
(31/07/2007).
52
http://www.archaeology.sdu.dk/

32