Buenos Aires Draft Convention on the Protection of the Underwater Cultural Heritage

Article 10: Seizure of Heritage

1. Subject to Article 9, on the request of any Party or on its own
initiative, each State Party, in accordance with its constitutional
procedures, shall seize any underwater cultural heritage brought
within its territory, directly or indirectly, after having been
excavated or retrieved in a manner not conforming with the Charter.

2. A State shall seize underwater cultural heritage known to have been
excavated or retrieved from a cultural heritage zone or territorial
sea of another State Party only after obtaining the consent of that
State.

Commentary

1. The Convention will need the cooperation of a large number of States
Party to be truly effective. Moreover, membership will need to include “art
market”States and other States whose nationals have access to advanced
technology. For example, if Spain were a Party and received notice of a
vessel containing cargo that had been excavated in noncompliance with the
Charter, for example, beyond the cultural heritage zone of Malaysia, it
would be required to seize the excavated material if the vessel entered
Spanish territorial waters.

The Convention states that seizure will occur where the heritage has been
“brought within its territory, directly or indirectly, after having been
excavated or otherwise retrieved…”. The “directly or indirectly language
is an attempt to expand the scope of the Convention. An intervening sale of
excavated material can create problems. Suppose that European excavators of
material excavated off the Malaysian coast proceed directly from the Far
East to the Netherlands and suppose that the Netherlands is not a party to
the Convention. There the excavated material is sold by auction. One of the
purchasers is French and brings his ceramics home. Under the Convention, if
France was a Party, it would have an obligation to seize the ceramics. This
obligation exists whatever the number of intervening transactions in an
object.

It should be noted that if an object has not been “abandoned”according to
the definition in Article 1(1), it is not covered by the Convention and
therefore need not be seized.

2. The purpose of this Article is to make clear that a State can only seize
underwater cultural heritage from the cultural heritage zone or territorial
sea of another State Party if the latter requests or acquiesces in the
seizure. This is to prevent the seizing State from applying more stringent
provisions than the State in whose cultural heritage zone the object is
found. A State is not prevented, however, from seizing underwater cultural
heritage found in the jurisdiction of a non-Party State.

Article 11: Penal Sanctions

1. Each State Party undertakes to impose penal sanctions for importation
of underwater cultural heritage which is subject to seizure under
Article 10.

2. Each State Party agrees to cooperate with other Parties in the
enforcement of these sanctions. Such cooperation, consistent with
national procedures, shall include but not be limited to, production
and transmission of documents, making witnesses available, service of
process and extradition.

Commentary

1. Committee members recognized that municipal penal laws, particularly
within federal or other complex systems of authority, vary widely. As a
basic obligation, however, the Convention requires States to undertake to
impose penal sanctions for what, in effect, are activities affecting the
underwater cultural heritage in ways contrary to the provisions of the
Charter. This provision is, however, expressed specifically in terms of
importation, in order to avoid controversy that might cripple any attempt
to extend penal sanctions to other aspects of the regime. The nature of the
sanctions is left to each State Party.

2. To be effective, cooperation in enforcement of sanctions must, of course,
be consistent with national procedures which are often subject to their own
legal regimes established by international agreement. It is anticipated
that, over time, those regimes would seek to improve the degree of
cooperation mandated here. For example, Treaties on extradition might
include the offense of importing underwater cultural heritage subject to
seizure as an extraditable crime.

Article 12: Notification Requirements and
Treatment of Seized Heritage

1. Each State Party undertakes to notify the State or States of origin,
if known, of its seizure of underwater cultural heritage under this
Convention.

2. Each State Party undertakes to record, protect and take all
reasonable measures to conserve underwater cultural heritage seized
under this Convention.

3. Each Party undertakes, wherever possible, to keep underwater cultural
heritage seized under this Convention on display or otherwise ensure
the fullest reasonable access to it for the benefit of the public.

Commentary

1. Article 149 of the 1982 United Nations Convention on the Law of the Sea
states that particular regard is to be paid to the preferential rights of
the State or country of origin when preserving or disposing of objects of
an archaeological or historical nature found in “the Area”. These
preferential rights will take effect only upon a State’s acceptance of the
International Seabed Authority, as provided for in the 1982 Convention.
While in some cases the State of origin may be easily deduced, in others it
would be impossible to determine. For example, an object may be determined
to come from a particular ancient state or region which today is occupied
by four or five national States.

2. It is recognized that conservation is very expensive and that this
provision could require unforeseen expenditure of money by a State. The
primary duty is, however, to record seized material. Moreover, it is
unlikely that material which is particularly expensive to conserve, such as
wood, would often be seized. Persons raising this kind of material would be
more likely to do so in accordance with the provisions of the Charter, with
the result that it would not be subject to seizure.

3. Because objects are seized for the public benefit, they should be used
for educational purposes, as set out in Article 14. What is actually done
with the objects would depend on their condition and the needs of
conservation. Public access or even access for specialists may have to be
limited if objects are fragile. Nevertheless, the words of a federal court
in the United States are persuasive:

A painting has no value except the pleasure it imparts to the person
who views it. A work of art entombed beyond every conceivable hope of
exhumation would be as valueless as one completely consumed-by fire.
Thus, if the paintings here involved may not be seen, they may as
well not exist. (Commonwealth v. Barnes Foundation, 159 A.2d 500, 502
(Pa. 1960)).

The objects recovered from the bottom of the sea, albeit unlawfully, are to
be used for both scientific and educational purposes to the greatest extent
possible, consistent with what context remains.

Article 13: Collaboration and Information-Sharing

1. Whenever a State has expressed a patrimonial interest in particular
underwater cultural heritage to another State Party, the latter shall
consider collaborating in the investigation, excavation,
documentation, conservation, study and cultural promotion of the
heritage.

2. To the extent compatible with the purposes of this Convention, each
State Party undertakes to share information with other States Party
concerning underwater cultural heritage, such as but not limited to,
discovery of heritage, location of heritage, heritage excavated or
retrieved contrary to the Charter or otherwise in violation of
international law, pertinent scientific methodology and technology,
and legal developments relating to heritage.

3. Whenever feasible, each State Party shall use appropriate
international databases to disseminate information about underwater
cultural heritage excavated or retrieved contrary to the Charter or
otherwise in violation of international law.

Commentary

1. The Committee recognized the serious problems that inhere in determining
a single country of origin.”Even though it may be impossible to establish
a single country of origin when it is evident that seized material has
connections with other parts of the world, States should contact other
States Party that may have some substantial connection with the material,
in order to collaborate in dealing with the material. This may foster
international cooperation and harmony as well as higher quality work on the
material.

2. Rarely does the underwater cultural heritage beyond the territorial sea
concern only a single, still existing State. If a shipwreck, the vessel will
often have been making for a port in what is now another State. The site
will reveal information about trading routes as well as details of the lives
of the crew and passengers, construction of the vessel, and so on. It is
essential that this information be distributed as widely as possible among
interested parties, not only so that others know of what has been found but
also so that their expertise may be brought to bear on interpretation and
understanding of the information. It is also essential for the purposes of
this Convention that information on illegal excavations be distributed as
widely as possible.

3. This paragraph reminds States, to their individual and mutual benefit,
of the necessity for rapid dissemination of information and the ability of
international databases to achieve this.

Author: international