Investing in culture: underwater cultural heritage and international investment law.

• Author: Vadi, Valentina Sara

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.

TABLE OF CONTENTS I. INTRODUCTION II. TREASURES BENEATH THE SEA: THE CONCEPT OF UNDERWATER CULTURAL HERITAGE III. UNDERWATER CULTURAL HERITAGE: THE INTERNATIONAL LEGAL FRAMEWORK A. The International Law of the Sea and Underwater Cultural Heritage B. The UNESCO Convention on the Protection of Underwater Cultural Heritage: One Step Forward, Two Steps Back? C. Salvage Law D. The Law of Finds E. The Settlement of International Disputes Concerning Underwater Cultural Heritage IV. INTERNATIONAL INVESTMENT LAW AS A FURTHER LAYER OF REGULATION A. International Investment Law and Cultural Heritage: Defining and Connecting the Two Fields B. The Case Study: The DIANA Adventure C. The Arbitral Award and Its Definition of Investment 1. A Critical Assessment 2. What If the Case Was Reversed? The Challenge of Reconciling Cultural Heritage Protection and Investor Rights D. Legal Options 1. Systemic Interpretation 2. Legal Drafting: Introducing Cultural Clauses in Investment Agreements V. FINISHING THE INTERRUPTED VOYAGE: INTERNATIONAL LAW AND UNDERWATER ARCHAEOLOGY A. The Traditional Dichotomy: Purism vs. Salvage B. Smart Salvage: A Third Way? 1. Managing Underwater Cultural Heritage 2. The Preservation of Cultural Heritage as a Key Factor in Sustainable Development VI. CONCLUSION "To see a world in a grain of sand ... And eternity in an hour." (1)

1. INTRODUCTION

   Ancient shipwrecks contribute to our understanding of history by providing a glimpse into different epochs and societies. In recent times, the advancement of technology has made it possible to find, visit, and remove artifacts from shipwrecks that had remained in the abyss for centuries. The increasing ability to reach these archaeological treasures has intensified the debate over related ownership and management issues. Because of the huge efforts and expenses needed to recover and rescue these shipwrecks, commercial salvors have been particularly successful in maritime excavation. While private actors have recovered expenses by claiming possession rights and even selling the artifacts, the scientific community and the public at large have demonstrated an interest in the preservation of cultural heritage. (2) In dealing with these conflicting interests and philosophies, courts have struggled to settle cultural heritage disputes. Given the international dimension of most of the disputes, UCH has become the latest frontier of international legal debate. (3)

   This Article proposes a different theoretical framework for reconciling private interests with the public interest in cultural heritage protection under international law. International law needs to be reinterpreted and reshaped in order to better protect and preserve UCH, and preservation of cultural heritage must be recognized as a key element of economic, social, and cultural development.

   The Article begins by defining the multifaceted concept of UCH and describing the legal framework that governs it in order to verify whether the existing regime adequately protects undersea heritage. As a regime complex (4) governs the exploration and management of ancient shipwrecks, the fragmentation among different treaty regimes and the existence of maritime customs have led to new forms of piracy, effectively undermining UCH preservation.

   The Article then questions whether international investment law might provide an alternative framework for the protection of undersea heritage. In scrutinizing whether investment law is applicable to salvage contracts by which private actors rescue ancient shipwrecks with a state's consent, two questions arise: first, whether investment treaties are compatible with states' obligations to protect UCH, and second, whether investor--state arbitration is a suitable forum to deal with claims concerning UCH. In order to answer these questions, this Article will analyze a case currently under consideration at the International Centre for Settlement of International Disputes.

   Finally, the Article contends that synergy may be found between public and private actors and that, as the proposed model demonstrates, preservation of cultural heritage is a key component of economic, social, and cultural development.

2. TREASURES BENEATH THE SEA: THE CONCEPT OF UNDERWATER CULTURAL HERITAGE

   Historic sunken vessels constitute the essence of UCH. (5) The concept of UCH is much broader, however, and can be defined as "all traces of human existence having a cultural, historical or archaeological character which have been partially or totally underwater, periodically or continuously, for at least 100 years." (6)

   UCH requires protection for several reasons. First, cultural heritage has a historical and archaeological value, as it allows discourse and reflection upon the past. While, in some rare cases, aesthetic beauty alone would justify consideration of certain archaeological remains, in other more frequent cases it is the narrative connected to the object that makes it unique and fascinating. The existence of financial riches or a work of art on board a shipwreck is not only apparently random (7) but also may be detrimental to preservation of the site by attracting looters and even vandals. Generally, sunken vessels provide unique information for reconstructing lifestyles, trade routes, and shipbuilding techniques that no longer exist. In some cases, navigation instruments, clothing, and even foods and medicines used aboard ships have been rescued. (8) The knowledge unveiled by the discovery of an ancient shipwreck thus represents an authentic knowledge treasure.

   Ancient shipwrecks offer archaeological materials in context. (9) Discovering undersea heritage is like gaining access to the secrets of a civilization, in their entirety, at a fixed point in time. (10) In addition, UCH is often very well preserved, due to low oxygen levels in marine environments, (11) thus preventing both alterations and stratifications (unlike in the case of land archaeology, where almost everything is altered over time). UCH is, therefore, much like a time capsule waiting to be unlocked. (12)

   Second, as Dr. Last highlights, "[i]t is important when considering the concept of cultural heritage to recognise its importance in the formation of cultural identity." (13) UCH may contribute to the formation and preservation of cultural identity and, by fostering people's sense of community, can hold associative value. UCH may also have a spiritual dimension, as these ancient vessels, in many cases, represent a collective burial for the people who lost their lives in the shipwreck. (14) Recovering a shipwreck means resolving an historical jigsaw, a collective disappearance that happened centuries before. (15)

   Third, a unique feature of UCH is its inherently international character. Ships engaged in international and regional trade often wrecked at a distance from their origins and destinations. (16) It was common for vessels built in one country to transport cargoes to a second country under a third country's flag; furthermore, ships' crews were often internationally diverse, and wrecks often occurred in international waters or in the territorial waters of yet another country. (17) While one might argue that only the special circumstances of a case cause a ship to sink in a given area, certain regions that have represented maritime trade routes for centuries might constitute maritime cultural landscapes. (18) The cosmopolitan character of UCH as a "common heritage of mankind" (19) makes it an object worthy of protection by international law. (20) "The importance of cultural heritage to the international community has long been established and appreciated; not only does it manifest universally shared values, but by revealing and respecting the specific national features of different original civilizations, it also promotes understanding among nations." (21)

3. UNDERWATER CULTURAL HERITAGE: THE INTERNATIONAL LEGAL FRAMEWORK

   At the international level, "[t]here is wide agreement ... that archaeological remains and their treatment are a matter of 'public' concern." (22) With regard to UCH, the need for appropriate management frameworks has become pressing because technological progress has allowed unprecedented accessibility to UCH, thereby increasing the risk of damage and destruction.

   Because UCH is an important component of cultural heritage, (23) it receives general protection under a series of international law instruments protecting cultural rights. For instance, the Universal Declaration of Human Rights states that everyone "is entitled to realization ... [of] cultural rights indispensable for his dignity." (24) Cultural rights have similarly been confirmed by Article 15 of the International Covenant on Economic, Social and Cultural Rights, which recognizes individuals' rights to take...