Paper On Underwater Cultural Heritage and Investment Law

Valentina Sara Vadi, a Ph.D candidate at the European University Institute has an article in the recent edition of the Vanderbilt Journal of Transnational Law, Investing in Culture:  Underwater Cultural Heritage and International Investment Law.  Here is the abstract:

Underwater cultural heritage (UCH), which includes evidence of past cultures preserved in shipwrecks, enables the relevant epistemic communities to open a window to the unknown past and enrich their understanding of history. Recent technologies have allowed the recovery of more and more shipwrecks by private actors who often retrieve materials from shipwrecks to sell them. Not all salvors conduct proper scientific inquiry, conserve artifacts, and publish the results of the research; more often, much of the salvaged material is sold and its cultural capital dispersed. Because states rarely have adequate funds to recover ancient shipwrecks and manage this material, however, commercial actors seem to be necessary components of every regulatory framework governing UCH.  In this context, this Article aims to reconcile private interests with the public interest in cultural heritage protection. Such reconciliation requires that international law be reinterpreted and reshaped in order to better protect and preserve UCH and that preservation of cultural heritage be recognized as a key component of economic, social, and cultural development. 

"We actually invited the Spanish government to send Archaeologists along."

So said Greg Stemm on the Today show last week discussing the ongoing dispute between Odyssey Marine and Spain. The interview was primarily an excercise in corporate self-promotion for the upcoming special on the sister network at 10 p.m. (ET) on Thursday, April 2, on the Discovery Channel’s “Treasure Quest.” Nonetheless there were some interesting comments made, though there was very little attention paid to archaeology or the importance of preservation of the site and the remains of the vessel.

The odd thing about this dispute and the Today segment in particular are the insistence on painting the controversy in terms of pirates and buried treasure and other romantic ideas. The reality of underwater heritage is far mor nuanced and important.

A few excerpts:

“The ship is the history and national patrimony of Spain, not a site that may be covertly stripped of valuables to sell to collectors. Odyssey was well aware that it is off limits,” said Spain’s American attorney in the case, James Goold.

Odyssey, a publicly held company that is a leader in deep-sea archaeology and treasure recovery, found the vast trove on a 2007 expedition in what it says are international waters off Portugal and the Straits of Gibraltar. The coins were spread over an area the size of several football fields at the bottom of the ocean.

After filling a chartered Boeing 757 with the coins and shipping them to Florida, Odyssey returned to the area to further investigate the site. There they were boarded by a Spanish warship, and the ship and crew were held for several days in a Spanish port.

Stemm concedes that the treasure may have been that carried by the Mercedes, but said that the identity of the vessel has not been established. One difficulty in doing that is that the Mercedes was hit in its powder magazine during the battle and blew up, leaving little actual wreckage at the bottom of the ocean.

Even if it was the Mercedes, Stemm said, that still does not automatically mean that Spain has sole claim to the treasure. Odyssey has argued in court that the Mercedes was carrying the treasure under contract with the merchants who owned it, and as such was acting as a merchant ship and not a warship.

“The Mercedes, if it was the Mercedes, was carrying a merchant cargo,” Stemm said. “While governments can take a sovereign immune warship and say that nobody can salvage it, they can’t say that you can’t salvage goods on behalf of merchants. In fact, we have the descendants of a lot of the merchants that had goods aboard the Mercedes that have come into court and said, ‘We think Odyssey should salvage these goods for us.’ ”

“And remember, there is not even a shipwreck there,” Stemm added. “This is like several football fields of just coins, scattered out over the bottom.”

Stemm says that the original expedition was to an area where his company believed a number of ships had sunk over the years. He said Odyssey notified the Spanish government of its intentions to search the area.

“When we went out to look in this general area, we thought there might be some Spanish shipwrecks,” he told Curry. “We actually invited the Spanish government to send archaeologists along. They just never got back to us.”

Goold has told other news outlets that Spain did respond to the invitation, telling Stemm, “Sunken ships are cultural heritage. Spain does not do commercial deals. It's national patrimony.”

Looting Underwater Sites

Three British divers have plead guilty to looting treasures from a wreck off the coast of Spain:

Peter Devlin, Malcolm Cubin and Steve Russ, all commercial salvagers from Cornwall, were arrested in June 2002 on suspicion of stealing gold and diamonds from a sunken ship off the coast of Galicia, in northwestern Spain.

The three faced prison sentences of up to six years each and heavy fines for theft and destruction of Spain's cultural heritage. But at a court in Santiago de Compostella yesterday, they pleaded guilty in return for suspended sentences and a fine of €1,000 plus €2,500 costs each.

"We are now convicted criminals in Spain but relieved that after seven years the ordeal is finally over and we won't have to go to prison," Mr Cubin (38) a father of four from Truro, said. "We're disappointed because it's not what we wanted at all and still maintain we did nothing wrong, but there was nothing else we could do."

UNESCO Wants HMS Victory Preserved

Yesterday UNESCO released a statement concerning the announced discovery of the wreck of the HMS Victory by Odyssey Marine:

“I am delighted that such an exceptional example of underwater heritage has been located. The cultural and scientific value of this artefact is considerable,” declared Koïchiro Matsuura, Director-General of UNESCO. “In the spirit of the Convention adopted by UNESCO in 2001, I trust that all parties concerned will take the necessary measures to ensure this important vestige of British naval history is safeguarded and given appropriate attention, not used for commercial gain.”

The statement stands in stark contrast to this week's earlier interview by the company's own Greg Stemm.  UNESCO and the relevant Underwater Heritage Convention both strongly disapprove of the use of underwater sites for commercial gain.  Few of the World's major nations have signed on to this proposition.  The UK Government would seem to believe that scientific study can be accomplished with commercial exploitation, or at least that the commercial value may outweigh a more thorough study. 

HMS Victory Found

Odyssey Marine has announced today in a news conference in London the apparent discovery of the HMS Victory, which sank in the English Channel in 1744.  The wreck was discovered in May 2008.  The company has recovered two of the vessel's one-hundred brass cannons, pictured here. The wreck is rumored to contain more than a billion dollars in gold. 

 Note that Odyssey won't have the rights to this gold, unlike the "Black Swan" wreck, this vessel was clearly a British navy man-of-war, and as such any salvage will be property of the crown.  Odyssey is now negotiating with the UK Government.  A far different relationships than with the Spanish, who have been strongly critical of the company, including bringing suit in federal court in Tampa Florida over the "Black Swan". 


From the Guardian:

The Ministry of Defence has given the company permission to go back down to the wreck to try to find the treasure.

The British Government will legally own any gold that is recovered, but Greg Stemm, chief executive officer of Odyssey Marine Exploration, said he was in negotiations and would expect to be rewarded for the find.

Mr Stemm said: "The money is not as important as the cultural and historical significance of the discovery. It is a monumental event, not only for Odyssey but for the world.

"It is probably the most significant shipwreck find to date. HMS Victory was the mightiest vessel of the 18th century and the eclectic mix of guns we found on the site will prove essential in further refining our understanding of naval weaponry used during the era."

Stemm certainly appears to be playing up the heritage and cultural significance angle.  Again the question worth asking is, will Odyssey be undertaking serious archaeological study?  Will the Government insist upon such an examination?  It's worth noting as well that Odyssey is traded on Nasdaq.  Might its stock increase today?  Should we be treating the discovery of underwater heritage in this way?

Loss of HMS 'Victory', 4 October 1744, by Peter Monamy. 

An OPEC for Nations of Origin? (LATE UPDATE)

OPEC is the organization of oil-producing countries which regulates their production, price, etc. A number of people have suggested that perhaps a similar movement should be adopted among nations of origin for antiquities loans, repatriations, and perhaps even licit sales. It would seem to be a terrific strategy for these nations to combine their efforts, so long as they can agree upon similar strategies. A few items in the news and among other blogs point to the emergence of such a collaboration.

First, Italy and Greece have continued their cooperation. The Greek Minister of Culture, Mihalis Liapis and Sandro Bondi, the Italian Minister for Culture have signed a memorandum of cooperation on cultural issues. As part of the agreement, the Nostoi exhibition will travel to the New Acropolis Museum in Athens in September, and there will likely be more pressure on institutions and private collectors to return objects, as David Gill recently noted with the news that Shelby White will return objects to Greece.

This news comes as Egypt continued its recent efforts and signed yet another agreement, this time with Ecuador. Egypt has already signed agreements with Italy, Cyprus, Denmark, Cuba, Kazakhstan, Jordan, Peru and Switzerland according to the Egyptian weekly Al-Ahram.

I think we can take a couple of lessons from these efforts. First, it is another indication that UNESCO has had a difficult time building consensus, and the spread of these bilateral agreements is a sign the UNESCO Convention itself does very little if a signatory does not want to give much teeth to its accession.

Second, these repatriations and cooperation may be a very good thing, however the real test of these efforts remains how well sites are protected, and whether there remains a workable heritage management policy in these nations. Recent news out of Greece suggests they are not. It seems last month the Greek parliament has taken a step last month to allow divers to access the entirety of the Greek coastline. This would be very good for tourism, but how are the objects these divers find going to be managed or educated? How will sites be affected?


Pictured here of course is the Bronze Statue of a Victorious Youth, a statue found by chance in the Adriatic in the 1960s. How many more of these objects will be uncovered if the Greek coast is opened up to divers? I know very little about how the Greek waters are currently protected, but it would seem to me to be a poor policy which only criticizes foreign institutions and buyers while not properly protecting domestic objects and sites before they are exported.

LATE UPDATE:

David Gill has kindly noted in the comments, and on his blog that the report I noted above is out-of-date and most likely inaccurate. It seems Greece is not, of course, thinking about opening its coast to amateur underwater salvors. However, I think the underlying question I raised is still valid in Greece and elsewhere: what can and should be done about underwater sites and wrecks

Personal Note

I am pleased to announce that my PhD thesis has been completed, successfully defended, corrected and printed. It's titled "Preventing and Repairing These Losses: The Legal Response of the United States and the United Kingdom to the Illicit Trade in Cultural Property". I think I should have perhaps chosen a more succinct title.

It feels great to be finished, and it was a lot of hard work with some tough decisions, but it wouldn't have been possible without a lot of help and support from my colleagues here in Aberdeen and Joni (aka "my funder"). I'm sorry to say much of that support was undermined by our French Spaniel and serial abuser pictured here.

I've included the table of contents below. I'm still not sure if I want to try and publish it, which would mean a lot more work, and I suppose part of that will depend on where I land in the coming months. I started this little blog as a way to stay productive, even when I couldn't quite get things going on the thesis. I've found it invaluable, and for anyone who writes I think a blog is a great way to keep in the habit of writing.

I'm not sure where we will end up at this point, I plan to continue research into cultural heritage issues, or at least a related field which will allow me to continue the work I've been doing. I had what I thought was a good shot at a couple of postdoctoral funding opportunities which would have allowed me to look in some real depth at repatriation, but unfortunately those fell through. On a happier note I am involved with a really exciting project with some people which will create a really great cultural heritage resource, which I'll talk about in much more depth here in the coming months.

Posting will likely be very light for the next few weeks, as we're heading back to the States to catch up with family and friends.

Chapter 1: Introduction.. 1

I. The Aims. 1

II. Foundational Issues and Terminology. 3

A. Illicit Cultural Property. 3

B. Source and Market Nations. 3

C. Provenance. 4

III. The Nature and Extent of the Illicit Trade. 6

A. Art 8

B. Antiquities. 9

IV. Laying the Theoretical Framework. 10

A. Values Inherent in Cultural Property Policy. 10

1. Preserving the Object 11

2. Preserving Archaeological Context 12

3. Preserving the National Patrimony. 13

4. International Movement 14

5. Accessibility. 15

B. Cultural Heritage or Cultural Property?. 16

C. How Sympathetic Facts Distort Cultural Property Law.. 17

V. The Scope of this Work. 21

Chapter 2: Regulating Cultural Property at the Source.. 22

I. Introduction: How to Prevent the Illicit Trade at Its Source?. 22

II. Regulation in Source Nations. 23

A. The Typical Approach: Guatemala. 24

B. Other Examples. 27

1. Peru. 27

2. Mexico. 28

3. Nigeria. 29

C. China. 30

D. Italy. 36

E. Cultural Property Strategies in Developing Nations. 39

1. Nationalizing Cultural Property. 39

2. Efficacy of Export Restrictions. 42

3. What can a Source Nation do when an Object has been Exported?. 46

4. Combating the Illicit Trade v. Bare Retentionism... 47

III. Domestic Regulation of Cultural Property in Market States. 50

A. Domestic Regulation in the United States. 52

1. Initial Federal Efforts. 53

2. The Archaeological Resources Protection Act of 1979. 54

3. The National Historic Preservation Act 56

4. Native American Graves Protection and Repatriation Act 58

5. The Law of Finds. 60

B. Domestic Regulation in the United Kingdom... 63

1. Scheduled Ancient Monuments. 63

2. Treasure Trove and the Portable Antiquities Scheme. 65

3. Scotland. 69

4. Limited Export Restrictions: The Waverley Criteria. 74

IV. Summary: What are the Key Components to Effective Domestic Regulation?. 78

Chapter 3: Public International Law and Cultural Property.. 80

I. Introduction: Public International Law and Cultural Property. 80

A. Origins of the Protection of Cultural Property. 81

II. Attempts to Forge a Workable International Framework. 84

A. 1954 Hague Convention. 84

1. Defining Cultural Property in the Convention. 86

2. Shortcomings of the Convention. 87

3. The First Protocol 88

4. The Second Protocol 89

III. The 1970 UNESCO Convention. 92

A. Individual Articles. 93

1. Problems with Interpretation: Articles 3 and 6. 93

2. The “Heart” of the Convention: Article 7. 95

3. Defining the Scope of Protection. 97

B. Impact of the Convention. 97

C. Implementation and Bilateral Agreements. 100

1. Implementation of the UNESCO Convention in the US. 100

2. Switzerland. 105

3. Implementation in the UK.. 106

IV. A Case for the Reform of UNESCO.. 108

A. The Perceived Bias in UNESCO Undermines its Efforts. 109

B. The 1995 UNIDROIT Convention. 113

C. The 2001 UNESCO Convention For the Protection of the Underwater Cultural Heritage. 114

V. Summary. 115

Chapter 4: Conflict of Laws in Cultural Property Disputes. 117

I. Introduction: The Problem When the Claims of Two Relative Innocents Collide. 117

II. Manifestations of the Conflict 120

A. Entrustment v. Theft or Wrongful Dispossession. 121

B. When the Conflict Involves Statutes of Limitations. 123

C. When Tort Rules Conflict 127

D. When Movable Property Rules Conflict 129

E. The Consequences of the Choice of Law Challenge in Art and Antiquities Litigation. 131

III. The 1995 UNIDROIT Convention. 135

A. What UNIDROIT Got Right 136

1. Compensation for the Diligent 136

2. Highlighting Due Diligence. 137

3. Limited Right of Return. 139

B. Two Weaknesses Prohibit Widespread Implementation. 140

IV. The General Choice of Law Inquiry and Alternatives. 141

A. The General Rule: Lex Rei Sitae. 141

B. Renvoi 142

C. Lex Originis. 147

V. Summary. 149

Chapter 5: Market Regulation of Cultural Property in the UK.. 151

I. Introduction. 151

II. Recent Reform in the UK.. 151

A. The Select Committee Inquiry. 152

B. The Illicit Trade Advisory Panel 153

C. After Five Years, What Result?. 155

III. UK Restrictions on the International Movement of Cultural Property. 156

A. Customs Powers. 157

B. EU Legislation Governing Cultural Property. 158

C. Accession to the 1970 UNESCO Convention. 161

D. Public Laws of Foreign States. 161

1. Nationalization and Export Restrictions. 162

2. Stigmatizing Illegally Exported Objects. 163

3. The Recent Iranian Claims: Unpacking Public Laws and Unclear Nationalization. 164

4. Why Not Enforce Public Laws?. 168

IV. The Treatment of Cultural Property in the Law of England and Wales. 170

A. Criminal Law.. 170

1. Theft Act (1968) 170

2. Dealing in Cultural Objects (Offences) Act 2003. 172

B. Private Litigation. 176

1. Contract 177

2. Tort 180

3. Restitution. 182

4. Limitations Rules. 183

V. The Scots Law Treatment of Cultural Property. 186

A. Criminal Law.. 188

1. Common Law Theft 188

2. Reset and Criminal Activity Outside the UK.. 190

3. The Draft Culture (Scotland) Bill 194

B. Private Claims. 194

1. Ownership and Possession. 195

2. Restitution. 196

3. Spuilzie. 200

4. How Might Restitution and Spuilzie Apply. 202

5. Contract and Delict 203

6. Limitations Periods. 204

VI. Summary. 206

Chapter 6: Market Regulation of Cultural Property in the United States. 207

I. Introduction. 207

II. Federal Criminal Regulation. 208

A. National Stolen Property Act Prosecutions under the McClain Doctrine. 209

1. The McClain Cases. 211

2. United States v. Schultz. 214

B. Federal Criminal Forfeitures. 217

1. A History of Forfeiture. 218

2. The Litigation Surrounding Egon Schiele’s Portrait of Wally. 222

3. One Oil Painting Entitled Femme En Blanc by Pablo Picasso. 224

C. US Customs Regulations. 226

D. The Cultural Property Implementation Act 231

III. Civil Remedies. 232

A. The Substantive Claims. 233

B. Limitations Rules. 236

1. Adverse Possession. 237

2. Demand and Refusal 239

3. The Discovery Rule. 241

4. Laches. 243

C. Cultural Property and the UCC.. 244

IV. Summary. 246

Chapter 7: In Conclusion: A Way Forward.. 247

I. In Summary. 247

Appendix I: The 1970 UNESCO Convention.. 250

Appendix II: 1995 UNIDROIT Convention.. 256

Appendix III: The Dealing in Cultural Objects (Offences) Act 2003. 262

Appendix IV: The National Stolen Property Act.. 264

Appendix V: The Cultural Property Implementation Act.. 266

Bibliography.. 279

Cases Cited.. 286

Table of Legislation