Wreck divers face a worldwide threat
 Disputed gold coins from the Doddington ­ but will UNESCO's far-reaching proposals for shipwreck controls put an end to such fights over ownership?
Far from it, says Rex Cowan, who reports on a 'minefield' for divers

So who owns Clive of India's treasure?
What are the proposed changes?
The battle over the sale of Clive of India's treasure from the Doddington could reverberate on a worldwide scale if new proposals just launched by the United Nations Educational, Scientific and Cultural Organisation (UNESCO) for regulating all historic shipwrecks go ahead.
If divers think the legal position of historic shipwreck exploration and salvage is bewildering today, it is nothing to what the situation will be like if UNESCO's draft convention is eventually adopted by the member nations.
It promises to be a paradise for lawyers, and it bristles with the sort of prohibitions that will make shipwreck work a minefield for divers.
The discoverers of Clive's treasure, for instance, would have been so completely disenfranchised by the proposed changes to international law that they could not even have embarked on the argument about title and ownership. The hoard of gold coins on the wreck site off the South African coast was allegedly found by divers who concealed both their own identities and the exact location of the wreck site.
They maintained that the wreck was out of the jurisdiction of the South African government, and that under the rules of international salvage law they were the only rightful claimants to the treasure.
They imported the treasure into Britain for auction by the respected coin dealer Spink & Sons in London this summer. The South African government has issued a writ against all the parties, including the US agent who handled the importation. The complex issues to be decided are some of the very ones that the UNESCO draft convention will further complicate.
UNESCO has been trying for years to control the long-established freedoms of discovery and excavation of historic wrecks by divers, whether amateur or commercial. The current draft convention is the third attempt by their dominant group of archaeological and heritage "experts" to create a new international legal framework that will affect amateur divers and professional wreck-hunters all over the world.
In July, cultural delegations and archaeological experts from 53 member countries (and one observer nation, the United States) met in Paris to consider the draft of the International Convention on the Protection of Underwater Cultural Heritage. The main points of the draft convention are shown in the panel.
Although the meeting reached a consensus on many aspects of the draft convention ­ including education, consistency with the Law of the Sea, the basic need for a convention, and extending jurisdiction from the present 12 to 24 miles off the coastal state ­ concern was voiced over the definitions of "shipwrecks" and "underwater cultural heritage".
The convention proposes a firm prohibition on the sale of underwater cultural heritage, but there was no agreement about the age at which an artefact came into that category. Some states wanted 50 years, others 100.
The hot potato of who owns or is entitled to the "heritage" was passed around. Is a Dutch ship that is by an accident of nature thrown up on Indian shores part of the Dutch or the Indian national heritage, or is it part of the "world's" heritage?
For the most part, the voices of archaeological purism held sway. Adventurous speculative exploration, freebooting privateers, private enterprise and diving freedom seemed to have no place, even for discussion, at the meeting.
The United States stood alone in demanding that private-sector commercial recovery and sale of underwater cultural resources be included in the convention. The US representatives intimated that they would not support a convention that did not include such provision.
If a convention were passed without American approval, the USA might become the only place for the marketing and sale of shipwreck discoveries, and its ships the only ones that could transport underwater finds.
The Dutch and UK governments acknowledged that sometimes commercial incentives were necessary to get anywhere. The Russians did not like the present draft and wanted many articles rethought.
Eke Boesten, a Dutch consultant on International Law relating to shipwreck and specific cultural heritage legislation, attended the meeting as an observer. She was amazed to discover that although these issues had been on the agenda for many years there were still countries that had never addressed them before, and that appeared to be quite uninformed.
She was also bothered by the lack of knowledge about who the players in the field really were. Salvors, fishermen, marine biologists and the whole underwater technical industry were basically ignored.
She viewed the main achievement of the meeting to be the awakening of many of the government experts to hitherto unconsidered aspects of the issue.
There were enough doubts about substance and principle to convince the UNESCO participants that member nations needed more time for internal discussion and that there would then have to be a rethinking of some fundamental features of the draft.
For the time being, the immediate threat to current freedoms to find and excavate shipwrecks in many parts of the world is on hold, but the issue will not go away.
Now is the time for every diver interested in the future of historic shipwrecks in any form to make their views plain through the diving press and by communication with the Department of Culture, Media and Sport and the Shipwreck Advisory Committee.
Otherwise, we run the risk of some extremely rigid and all-embracing regulations going through on the nod and changing the face of historic shipwreck diving for ever. n
So who owns Clive of India's treasure?

Wreck-hunters face the South African government in court. Will the confrontation serve to heighten support for the stringent controls proposed by UNESCO?
A gold fortune belonging to merchant adventurer Robert Clive, a high-ranking East India Company official, was lost when the Doddington was wrecked on Bird Island, off the South African coast, in 1755.
Only 23 of those aboard survived, and after many adventures 17 reached India, having built a sloop out of wreckage and sailed it almost to Madagascar. The survivors managed to save some silver, but there is no record of Clive's treasure having been rescued.
In 1977 David Allen and a colleague, both divers, discovered the wreck of the Doddington. They salvaged a quantity of silver coins, bronze field guns and howitzers, beads, copper ingots and various maritime artefacts from the wreckage. South Africa, by its National Monuments Acts, retains jurisdiction over historic wrecks and the ownership of the remains and cargo.
Subsequently, many divers have surveyed and excavated the site, recovering hundreds of silver and 18 gold coins, but no trace ever emerged of Clive's treasure.
However, in 1977 a hoard of 1400 18th-century gold coins were brought to Spink & Sons, the international coin dealer, for auction. It is alleged to be Clive of India's long-lost treasure.
For "security reasons" the divers who had recovered the hoard did not want their identity or the place where the coins were found "somewhere in the Indian Ocean" divulged.
They claimed to have found the treasure by searching places on the route to Madagascar. They came across an unnamed, unrecorded cannon wreck, "almost certainly" a privateer or pirate vessel, that contained Portuguese gold coins of the same date and type as the few found on the Doddington site, and the gold weighed just 5 per cent less than Clive's consignment.
From this they conjectured that the Doddington's survivors had in fact recovered the gold, but that their makeshift boat had been looted by a pirate vessel that was later wrecked.
The divers stated that their find was located outside the jurisdiction of the South African authorities.
The South African National Monuments Council thought otherwise. It immediately made a claim for the treasure ­ and Spink wisely put the auction on hold. Delicate negotiations are currently taking place in an attempt to reach a settlement before the case comes to court.
The story of the Doddington is a vivid example of a growing problem. As advanced technology opens up previously inaccessible areas of the deep ocean, scores of underwater treasure-hunting teams, supported by huge financial sponsorship, are trawling the southern seas in particular in search of valuable wrecks.
However, UNESCO's new proposals aim to curtail the activities of private wreck-hunters and explorers, and vest total control in archaeological or cultural institutions.
The timing of the row over Clive's gold may encourage support for this draconian approach. UNESCO members might see prohibition on an international scale as a proper response to it.
How ironic it would be if the lost treasure of Clive of India, one of the world's great adventurers, were to nudge the convention towards outlawing his successors.

What are the proposed changes?
UNESCO's draft convention puts forward six main proposals:
  1. Anything of value for the "underwater cultural heritage" found under water is to be deemed the property of some government. Underwater cultural heritage is defined as "any trace of human existence under water". The extent of this definition is breathtaking ­ anything from a lost golfball to a broken surfboard.
  2. Historic shipwrecks covered by this definition are to revert to the ownership of a coastal nation if the wreck has been "abandoned". The definition of abandonment includes a presumption that any wreck 25 years old is abandoned unless proved otherwise. After 50 years, the abandonment is absolute, so all wrecks become "historic" and enter the category of "abandoned" after 50 years.
  3. The governments of coastal states will exercise jurisdiction over historic wrecks within 24 miles, but are also authorised to extend that jurisdiction to include deep-water wrecks in open and international waters by a form of "backdoor" control. States may seize, confiscate and prosecute activity affecting the underwater cultural heritage lying outside its jurisdiction if it is landed within its ports. This effectively controls not only the transportation but also the marketing of shipwreck material, treasure or otherwise. Member-states must also exercise control over the activities of their flag-bearing vessels. If, say, a substantial French porcelain wreck discovered three miles down in the South Pacific in international waters is brought for sale in a Dutch cargo vessel to an auction house in London, all parties would be liable to prosecution or confiscation of the treasure hoard.
  4. As there is an obligation on states to nullify any law or regulation that creates a commercial incentive for the recovery of the underwater cultural heritage, all contracts that now exist between many states and exploration groups would have to be rescinded.
  5. The draft convention does not spell out the elimination of free enterprise from any role in exploration and excavation of historic shipwrecks, but it is its clear intention to do so. The International Charter on the Protection of Underwater Cultural Heritage adopted in 1996, which would be adhered to by convention parties, provides not only that commercial exploitation of underwater cultural heritage for trade or speculation is incompatible with protecting the heritage, but also that project funding must not require the sale of underwater cultural heritage. This would outlaw many states' current practice of setting up sharing agreements with the private funders and providers of exploration and excavation teams.
  6. In article 19, the draft convention provides a cumbersome mechanism for the inevitable disputes that will arise, especially from hidden agendas. Many states have extensive contractual arrangements with various corporations and institutions for cutting the cakes of rich historic shipwrecks, often for the financial benefit of insecure governments. Greed, flying under archaeological flags and sanctioned by state licences, rules in some of the less salubrious areas of the world. The convention provides a system of arbitration and appeal to the International Court of Justice, but the complex structure provides a further road to endless litigation.
Appeared in DIVER - October 1998.