Guest blog by Robert F. MacKintosh, PhD candidate at the University of Southampton
The announcement last Tuesday that the wreck of Christopher Columbus’ flagship the Santa Maria had potentially been found in Haiti caused a wave of excitement around the world. If the wreck does turn out to be the Santa Maria it will be one of the most important discoveries ever made, and even if it is not the famous ship, any vessel of the age of exploration would still be of immense archaeological and historical value. Either way, the vessel will be the target of intense international scrutiny, as pointed out by Peter Campbell in a previous post.
Focus will be on the UNESCO 2001 Convention on the Protection of the Underwater Cultural Heritage, an international treaty designed to protect underwater cultural heritage (UCH) including shipwrecks. Will the Convention be able to protect such a high profile example of UCH? If so, it will showcase the benefits the Convention can provide to its ratifying states and may clear up some of its ambiguities. In short, the Santa Maria could be a landmark case for the 2001 Convention and the protection of cultural sites worldwide.
The 2001 Convention came into force in 2009. To date, 47 states have ratified it, including Haiti, and the vessel was found off Haiti’s north coast in territorial waters. The Convention places an obligation on all of its States Parties to preserve UCH, and to cooperate to achieve this. Since the Convention regime is still in its infancy, the current situation provides an opportunity to see how some of its mechanisms will be applied, and how effective they are.
Application of the Rules
The Convention addresses each maritime zone differently. States have the exclusive right to authorise and regulate activities in their territorial sea, but are required to apply the ‘Rules’ to any activity directed at UCH.
The Convention’s 36 Rules are a set of objective and internationally recognised standards. To meet the Rules, in situ preservation should be considered as the first option for the wreck (Rule 1). However, there are exceptions. The site could make a substantial contribution to knowledge, and it will no doubt be argued that the need to identify the vessel is significant enough to warrant excavation. Protection of the site can also be cited as a reason for intervention, and as the wreck has been looted before excavation, it may be necessary to protect it.
If activities are authorised these must not adversely affect the underwater cultural heritage more than is necessary for the objectives of the project (Rule 3), and non-destructive techniques must be given preference to destructive ones (Rule 4). The remainder of the Rules place a high standard on those seeking to investigate UCH and ensure a minimum quality of archaeological research when an intervention is made. Sound straightforward? The situation is complicated by a number of issues.
A number of people commenting on the news have stated that Spain (another of the Convention’s ratifying states) may claim jurisdiction over the vessel using the principle of sovereign immunity. This would impinge on Haiti’s exclusive right to regulate and authorise activities in its territorial waters. Sovereign immunity was developed to ensure that nobody interferes with sunken state vessels (mainly warships) without express authority of the flag state. It is slightly different to ownership, but the two are interrelated and often conflated, and Spain may well be able to claim both. However, the Convention does not deal with ownership; it does not matter who owns UCH as it is protected under the Convention regardless.
Spain has had recent experience of claiming sovereign immunity on a vessel located in international waters. In 2011 in the case regarding the looting of the Nuestra Señora de las Mercedes (often known as the Black Swan case), Odyssey Marine Exploration was ordered by a US court to return approximately 594,000 coins salvaged from the vessel to Spain. Despite this case, and the efforts of a number of flag states (most notably the USA), it is questionable that there is enough precedent for sovereign immunity to be considered as a principle of customary international law. The situation is especially complex when the vessel is located in another state’s territorial waters, like the putative Santa Maria wreck.
So how does the Convention deal with this? If the wreck is identified as a state vessel, Haiti ‘should inform the flag State Party’ (i.e. Spain) of the discovery (Article 7(3)). This is a compromise between the rights of the coastal and flag states and is one of the Convention’s more contentious provisions, providing one of the reasons many major maritime nations do not feel they can ratify it.
The older a wreck is, the harder it will be to both identify it and establish that it is a state vessel. The Santa Maria itself was owned by Juan de la Cosa and the voyage was only partially funded by the Spanish Crown, making Spain’s case trickier. If the wreck is not conclusively identified as the Santa Maria, or if it is considered not to have been owned or operated by Spain for government purposes, only the normal convention regime will be applied.
Trickier still, the word ‘should’ in this Article (rather than ‘shall’ which is used elsewhere in the Convention) suggests that if the wreck is classed as a state vessel, there is no enforceable duty for Haiti to inform Spain of the discovery. There is certainly no obligation for Haiti to seek Spain’s consent before authorising activities directed at the vessel, as there would be if it were located in a different maritime zone. However, a duty to cooperate for the protection of UCH underpins the whole Convention. One would expect that if Haiti were acting in the spirit of the Convention that the two states would cooperate for the benefit of the UCH, no matter the precise wording of the Convention. It will be interesting, in this light, to see how the situation progresses.
The other slippery legal issue raised by Article 7(3) is that of the ‘verifiable link’, as (again if the wreck is a state vessel) “other States with a verifiable link, especially a cultural, historical or archaeological link” should be informed of the discovery. It is as yet unclear just what can constitute a verifiable link, as state practice on the matter is still developing. The clause suggests that cultural, historical or archaeological factors are important, but are not the only foundations of a possible link. Spain would almost certainly have a verifiable link to the vessel, being the state of origin. Italy (also a State Party) may also claim a link, as Columbus was Italian (or at least Genoese) and Italians provided some of the finance for the voyage. Could the definition go any further? It may be that a verifiable link should be able to accommodate states that feel they identify with particular UCH, and in this case most states in the Americas could probably claim a link, especially where Columbus plays an important role in a country’s national history, like he does in the USA.
Haitian Archaeological Capacity
One final complication in the proper application of the Convention’s Rules may be Haiti’s archaeological capacity. Haiti might unfortunately not have either the money or expertise to excavate and conserve a find such as this. Underwater archaeology is a discipline in its infancy in Haiti, which has not declared a national competent authority for the purposes of managing UCH under the 2001 Convention.
Eight autonomous bodies work under the Ministry of Culture and Communication in Haiti, including the Institut de Sauvegarde du Patrimoine National (ISPAN) and the National Bureau of Ethnology (NBE) which is responsible for advising the Secretary of State for the Interior on when to grant permission for archaeological excavations. However, the earthquake of 2010 destroyed the premises of the Ministry of Culture and Communication, ISPAN and the NBE, and also badly affected the National Library and the National Archives. Heritage efforts since then have largely been focused on rescuing some of the countless monuments and sites that were severely damaged by the disaster.
One of the greatest benefits of ratification of the Convention however, is its cooperation scheme. Financial assistance is possible through the Underwater Cultural Heritage Fund (the Fund), and States Parties have an obligation to assist each other in the protection and management of UCH. Such assistance can include the provision of training, the sharing of expertise and technology, and direct collaboration in UCH projects. Assistance and funding from the Convention’s other States Parties could ensure the appropriate investigation and protection of the wreck.
Overall, there is nothing to stop Barry Clifford (who discovered the wreck) or anyone from continuing the research if they comply adequately with the Rules of the Convention. Yet it is hoped that aid is provided from other States Parties in order to demonstrate the benefits of the Convention, provide a boost for Haitian maritime archaeology, and give Haiti the capacity to properly engage with its other UCH. Providing for proper conservation and curation of the UCH could also lead to the creation of a world class museum, increasing tourism, creating employment and helping the wider Haitian economy.
Whether the ship is identified as the Santa Maria or not, this case provides an opportunity to show that the 2001 Convention can adequately protect a high profile example of UCH. It can demonstrate the benefits provided by the Convention to states which have not yet ratified, including the tangible advantages to developing states in the form of financial, technological and professional help from other states. The situation could also alleviate the concerns of a number of flag states by showing that even if Spain may not be able to claim sovereign immunity in the territorial waters of another state under the strict terms of the Convention, they can still be involved in the management of their vessels if both states have joined the 2001 Convention and act in its spirit.
Ultimately UCH should be used for the benefit of humanity and it is hoped that proper application of the 2001 Convention can ensure such a significant find can be primarily used to benefit of the people of Haiti.