IMT Institute for Advanced Studies, Lucca Lucca, Italy The Underwater Cultural Heritage: a Comparative Analysis of International Perspectives, Laws and Methods of Management PhD Program in MDCH XXV Cycle By Alberto Frigerio 2013 The dissertation of Alberto Frigerio is approved. Programme Coordinator: Maria Luisa Catoni, IMT Lucca Supervisor: Lorenzo Casini, La Sapienza, Roma Tutor: Lorenzo Casini, La Sapienza, Roma The dissertation of Alberto Frigerio has been reviewed by: [Name, Surname, Affiliation] [Name, Surname, Affiliation] IMT Institute for Advanced Studies, Lucca 2013 Dedicated to my family: You’re the best crew a captain could wish for! Table of Contents LIST OF FIGURES AND TABLES p. X ACKNOWLEDGMENTS p. XII VITA AND PUBLICATIONS p. XIII ABSTRACT p. XIV INTRODUCTION p. 1 CHAPTER 1: THE THEORETICAL FRAMEWORK OF THE UNDERWATER CULTURAL HERITAGE MANAGEMENT p. 16 1. The difficulties to elaborate a shared definition of underwater cultural heritage p. 16 2. The identification and assessment of the values associated with the underwater cultural heritage: a complex challenge, but of great importance p. 23 3. Managing the risk: the principal threats affecting the underwater cultural heritage p. 30 4. The interplaying interests related to the management of the underwater cultural heritage p. 36 4.1 Evaluating the compatibility of the interests at stake: trade-off or constructive interaction? p. 43 4.2 Planning the underwater cultural heritage management: a hierarchical pyramid of interests with a bottom up impact p. 51 5. Stakeholders identification and analysis: the problem to fulfill different expectations p. 54 6. A comprehensive theoretical model aimed to guide decision makers in the management of the underwater cultural heritage p. 62 CHAPTER 2: INTERNATIONAL LAWS AND PERSPECTIVES RELATED TO THE UNDERWATER CULTURAL HERITAGE p. 69 1. The 1982 United Nations Convention on the Law of the Sea: the development of a comprehensive system regulating the maritime issues p. 69 1.1 The protection of the underwater cultural heritage in the UNCLOS: too less, too generic p. 77 2. Salvage law and the law of finds: the application of commercial schemes on the underwater cultural heritage p. 81 2.1 New trends emerging from the US case law: more demanding rules for the historic salvage operations p. 92 3. The 2001 UNESCO Convention: an advanced system of protection based on “constructive ambiguities” p. 101 3.1 The historical development of the Convention p. 101 VII 3.2 The text of the Convention: principles, ambiguities and clashing arguments p. 104 3.3 The Rules of the Annex: a shared model of underwater archaeology p. 147 3.4 Planning the next steps. The firsts consultations of the Meeting of States Parties and the Scientific and Technique Advisory Body p. 162 4. Interpreting the will of the states: a comparative analysis on the ratifications of the main international conventions in force p. 167 4.1 Comparing the 1982 UNCLOS and the 2001 UNESCO Convention: the constrains that delayed their enforcement p. 174 4.2 Comparing the 1989 Salvage Law Convention and the 2001 UNESCO Convention: the co-existence of two conflicting international regimes p. 178 5. Title and sovereign immunity of ancient sunken state vessels: are they principles of customary international law? p. 183 6. Archaeologists vs. historic salvage companies: ethical, legal and methodological divergences p. 195 6.1 High costs, low profits and increasingly stringent rules: three reasons why the historic salvage companies should reconsider their plans p. 204 CHAPTER 3: ASSESSING THE EFFICACY OF THE MAIN METHODS OF MANAGEMENT FOR THE UNDERWATER CULTURAL HERITAGE p. 208 1. Exhibition (or storage) in “on-land” museums p. 208 1.1 Introduction p. 208 1.2 The Vasa Museum p. 209 1.3 Benefits and limits of the exhibition (or storage) of underwater cultural goods in “on-land” museums p. 228 2. Underwater museums p. 233 2.1 Introduction p. 233 2.2 The underwater museums of Baiheliang and Alexandria p. 234 2.3 Benefits and limits of the underwater museums p. 244 3. Underwater archaeological parks p. 247 3.1 Introduction p. 247 3.2 The Florida’s Underwater Archaeological Preserves p. 249 3.3 Benefits and limits of the underwater archaeological parks p. 263 4. Restricted access sites p. 269 4.1 Introduction p. 269 4.2 The Protected Wreck Sites in UK p. 270 4.3 Benefits and limits of the restricted access sites p. 279 VIII 5. Reburial or covering sites p. 282 5.1 Introduction p. 282 5.2 The BurgZand Noord 10 p. 283 5.3 Benefits and limits of the reburial or covering sites p. 290 6. Benefits and limits of the “no action” option p. 294 7. Comparative analysis of the different methods of management: main features and area of applicability p. 296 CONCLUSION p. 310 1. Theoretical reflections: the management of the underwater cultural heritage as a complex system p. 310 2. Juridical considerations: how the 2001 UNESCO Convention has completely changed the international legal context p. 314 3. Management analysis: the importance to assess the methods of management for compensating the lack of a “perfect solution” p. 328 4. Final remarks p. 336 SELECTED BIBLIOGRAPHY p. 340 IX List of Figures and Tables 1. Diagram for the assessment of the risks 2. Table relating interests, objects and main aims 3. Table on the interacting interests 4. Hierarchical pyramid of interests with a bottom up impact 5. Table of stakeholder and interests 6. A theoretical model for the underwater cultural heritage management 7. Schema of the different maritime zones regulated by UNCLOS 8. The reporting and notification system in the EEZ and on the Continental Shelf 9. Main matches and differences between the protection in the EEZ and on the Continental Shelf (arts. 9-10) and in the Area (arts. 11-12) 10. Schema on the settlement of disputes according to art. 25 11. Procedure for the adoption and entrance into force of amendments 12. Ratification of UNCLOS, Salvage Law Convention and 2001 UNESCO Convention 13. Chart illustrating the number of ratifications of the UNCLOS per year 14. Chart illustrating the growing number of states parties to the UNCLOS 15. Chart illustrating the number of ratifications per year, in the first 10 years, of the UNCLOS and the 2001 UNESCO Convention 16. Chart illustrating the growing number of states parties to the UNCLOS and the 2001 UNESCO Convention in the first 10 years from their adoption 17. Chart showing the attitude of the states which have ratified the 1989 Salvage Law Convention in relation to reservation of art. 30, par. 1(d) and 2001 UNESCO Convention 18. Table illustrating the diverse interpretation of the factors of risk 19. Organizational chart Swedish National Maritime Museums 20. Number of visitors per year of the Vasa Museum 21. Division of the revenues obtained by the Vasa Museum 22. Operational revenues and costs of the Swedish National Maritime Museums in 2011 X 23. Number of visitors per year of some of the main international maritime museums 24. Table summarizing benefits and limits of the recovery and exhibition of the underwater cultural heritage in “on-land” museums 25. Table summarizing benefits and limits of underwater museums 26. Chart on the average number of PADI certifications/year 27. Table summarizing benefits and limits of underwater archaeological parks 28. Table summarizing benefits and limits of restricted access sites 29. Table summarizing benefits and limits of reburial or covering sites 30. Table summarizing benefits and limits of unmanaged free access sites 31. Table comparing the efficacy of the main methods of management 32. Pre-excavation and post-excavation methods 33. Defining the preservation in situ in the active management 34. Assessing the conservation efficiency 35. Comparing the active conservation “on-land” and in situ 36. Assessing protection efficiency 37. Comparing protection “on-land” and in situ 38. Assessing the accessibility efficiency 39. Comparing accessibility “on-land” and in situ XI Acknowledgments Attending to this PhD has been a pleasant, but also challenging experience. Fortunately, in all these three years I had the opportunity of being supported by many people to whom I am grateful. First of all, I want to acknowledge my supervisor, Lorenzo Casini, who sustained the hard tasks of reviewing my final dissertation and of signing an infinite list of bureaucratic documents. In both these practices he showed infinite patience and inestimable competence. Special thanks go to professor Johan Rönnby, who supported my research during my (wonderful) four months at the Swedish Maritime Archaeological Research Institute (MARIS). Thanks to him I had the occasion to meet and interview several experts of underwater archaeology as well as the opportunity to participate to the MARIS workshop and other seminars. In addition, I want to acknowledge all those who dedicated time answering my questions or providing me suggestions. I very much appreciate your willingness to help me. I have to express my infinite gratitude to my family (mum Angy, dad Killus, sister Ary, brother Alex and grandma Gianna) who financially and morally supported me. You gave me the chance to realize my dream and, therefore, I dedicate to you this thesis. An extra thank to my brother Alessandro who helped me to improve the standard of English of my dissertation. I thank all my dear friends of Monza and surrounding areas. Spend time with you is always an immense pleasure. I am also grateful to my Turkish community of Stockholm (Yasemin, Volkan and Nur). You are crazy-lovely people. I express gratitude to my PhD colleagues (and friends). You made pleasant, hilarious and exciting our time spent in Lucca. Last, but not least I am grateful to my love Elvira. She motivated me whenever doubts and fears troubled me.