Tempest in a teacup:
BHR and commercial archaeology
Voltaire Veneracion
2 November 2021
In 1998, fishermen diving for sea cucumbers in the Gelasa Strait, a mile (or 1.6 km.) off the coast of Belitung Island, Indonesia, discovered a shipwreck beneath 17 m. (56 feet) of water. Later studies would reveal this Belitung Shipwreck to have been an Arabian dhow that sank around 830 Common Era (CE). The ship had completed the outward journey from Arabia to Tang Dynasty China, but sank on the return journey during a “side trip” toward the Java Sea.
The trade ware found in the ship comprises the biggest single collection of Tang Dynasty artifacts- the Yamang Batong Itim (Batu Hitam Treasure) – found in one location outside of China. Through the Arabian dhow (a traditional sailing vessel of the Red Sea and Indian Ocean), archaeologists have also learned about maritime pilgrimage and business routes between China and the Middle East in the early 9th c. CE.
The Belitung Shipwreck artifacts were sold as one collection and are now under the stewardship of Asian Civilisations Museum in Singapore. Artifacts have also been exhibited by different cultural and research institutions in other countries, including Shanghai Museum in People’s Republic of China (PRC), Smithsonian Museum and Asia Society New York in the US, and Aga Khan Museum in Toronto, Canada.
Smithsonian debate
Because of the complexity and huge financial investment required for underwater excavations, many developing countries, including Indonesia and the Philippines (Faylona, 2010), engage the services of private salvaging companies to carry these out.
Operations to excavate the Belitung shipwreck in 1998 and 1999 were financed and undertaken by German entrepreneur Tilman Walterfang and his company Seabed Explorations NZ Ltd., under a license of cooperation with local Indonesian salvaging company Limited Corporation/Perusahaan Terbatas (PT) Sulung Segara Jaya (which had earlier secured a license to engage in excavation) and supposedly upon the formal request of the Indonesian Government. For unclear reasons, Indonesian state archaeologists were not involved.
Despite Walterfang’s efforts to preserve the integrity of the site and its cargo and to keep the trade artifacts as one collection, which have led to detailed archaeological researches, the Sackler Gallery of Smithsonian Museum in Washington, D.C., had to postpone the US premier exhibition of the Belitung cargo in 2012 due to strong objections from archaeologists and anthropologists.
Those who opposed the display argued that the excavation was for commercial gain and conducted so quickly, resulting in the loss of invaluable scientific information pertaining to the ship’s crew and cargo. They cited international agreements on underwater excavations, as well as the Smithsonian’s set of professional ethics, that were violated. Finally, they claimed the exhibition would promote the looting of archaeological sites. (See also Faylona, 2010)
On the other hand, businessman Walterfang argued that, while “the overall situation was… ‘less than ideal,’” the commercial recovery he led saved the Belitung Shipwreck from looting and preserved its cargo from division and dispersal to different countries and individuals (a scenario that would have resulted in the loss of much more scientific data).
He narrated, “the Indonesian government, fearful of looting, ordered Seabed Explorations to begin an immediate round-the-clock recovery operation.”
Some experts and scholars also expressed views in support of Walterfang and the Indonesian government’s actions. Law & visual studies scholar Patrick Coleman even published a 2013 article in George Washington Law Review that proposes a more relaxed definition of “commercial exploitation” in international agreements to allow responsible commercial underwater salvaging such as, in the writer’s view, Tilman Walterfang’s.
(See relevant international rules and standards in UN Convention on the Law of the Sea or UNCLOS (1982), Articles 149 and 303; Underwater Archaeology Resolutions Adopted by ICMM in Barcelona, Spain (1993); ICOM Code of Ethics for Museums (1986, revised in 2004); International Convention on Salvage (1989), Article 30; UNESCO Convention on the Protection of the Underwater Cultural Heritage (2001, with Annex); and The Åland Accord – Statement of Code of Ethics for Maritime Museums (2019).)
Human rights in archaeology
Applying a BHR lens, we see two important themes in the Belitung Shipwreck controversy.
First, archaeology– defined as the study of the human past using material remains- has, among its stakeholders, private sector actors. Second, the operations of business people and companies involved in archaeology have potential and actual human rights impacts: stakeholders could therefore mitigate or eliminate human rights risks by applying the UN Guiding Principles on Business and Human Rights (UNGPs).
The private sector actors, in the case of the Arab dhow treasure, include Indonesian fishermen (who had “sold” the site location); the Indonesian company that had secured a license from its government to carry out commercial salvaging; and the latter’s partner (under a contract of cooperation), Tim Walterfang’s Seabed Explorations NZ Ltd.
Orange and Perring (2017) report that around 90% of all archaeological investigations (in the UK) is undertaken by commercial organizations.
Apart from underwater salvaging, commercial activities that often involve professional archaeologists and archaeology include:
- Archaeological consulting or “in-house” work (such as for the conduct of archaeological impact assessments or other compliance processes required by law prior to construction (Orange and Perring, 2017), mining, and development projects, as in the Philippines);
- Tourism (see Grima, 2017);
- Urban regeneration;
- Direct sale of material or “trading” in antiquities (see Gill, 2017, and Altaweel, 2019);
- Marketing and branding (see Bonacchi, 2017);
- Private museums; and
- Jobs created by archaeological research and conservation (Burtenshaw, 2017; Tantuico & Lim, 2020).
What human rights– recognised and protected by international instruments- are involved in archaeology and, in particular, commercial archaeology?
In the case of the Belitung salvaging, scholars opposing the Smithsonian’s exhibit cited rules that UNESCO (United Nations Educational, Scientific and Cultural Organization) had ratified in 2001, thereby pointing to potential violations of those guarantees UNESCO seeks to protect such as the right to participate in cultural life and the right to science.
Related to the above two rights are:
- The right to education;
- Freedom of thought, conscience, and religion;
- Right to life;
- Substantive due process (including privacy), equality and non-discrimination; and
- The right of indigenous and other peoples to self-determination.
Hardy (2017) describes actual cases in different countries showing the impact of archaeology on human rights. In instances where business actors are involved in the archaeological practice, it would be prudent to also look out for potential or actual violations of:
- Property rights;
- Right to work and labor rights, including the right to just conditions of work (both of professional archaeologists and other stakeholders);
- Right of the public to access of information; and
- The economic, social, and cultural rights of local communities.
These and other human rights are interdependent and indivisible: they must all be taken together as a whole. The most basic and fundamental rights are recognised by the International Bill of Human Rights and the International Labor Organization or ILO’s Eight Fundamental Conventions.
(For a discussion on related rules in the UN Convention on the Law of the Sea or UNCLOS and other international agreements, see Nie, 2015)
With growing public awareness and collective action in protecting and respecting our interdependent rights, the world can achieve UN Agenda 2030’s Sustainable Development Goals and develop adaptability and resilience (see University of the Philippines’ Project NOAH).
In the meantime, states, businesses, and civil society organizations can mitigate or eliminate cultural, scientific and other human rights risks – and future-proof ourselves – using the UNGPs as guidance.
To protect human rights, states must clearly set out how they expect businesses to respect rights. Moreover, states need to make laws and implement programs and actions related to the protection, respect, and fulfillment of rights through National Action Plans (NAPs) on BHR. (See Philippine Commission on Human Rights or CHR’s proposed amendment to the country’s Corporation Code and its Carbon Majors inquiry’s findings and recommendations.)
To meet international expectations on business respect for human rights, commercial archaeology enterprises (those contracted by companies and governments to perform services) and related business enterprises– by themselves or in consultation with BHR resource persons- must:
- Make their respective human rights policies (that – at a minimum – endorse the International Bill of Human Rights and ILO’s Eight Core Conventions) available to the public, in print or online; and
- Undertake human rights due diligence (the business process of identifying, preventing, mitigating, and accounting for actual and potential human rights impacts).
Finally, both states and businesses must actively enable remedies, both state-based (judicial and non-judicial) and non-state-based (including at the level of company operations).
The Belitung Shipwreck controversy threw into sharp relief the different interests involved in commercial archaeology, as well as relevant international rules and standards that seek to protect and respect cultural, scientific, and other human rights.
At the time PT Sulung Segara Jaya and Seabed Explorations NZ Ltd. (led by Walterfang), in coordination with the Indonesian government, conducted underwater excavation of the Belitung Shipwreck in 1998 and 1999, there were no UN Guiding Principles on BHR yet – the latter were unanimously endorsed by the UN Human Rights Council in 2011 – that could’ve given them clarity on the human rights impacts of their operations.
While many scholars have expressed the view that Walterfang did not violate any Indonesian law nor international rule at the time – UNESCO would adopt the UN Convention on Underwater Cultural Heritage or CPUCH a few years later, in 2001 – some have persuasively argued that he may have violated ethical codes, such as the then already-existing prohibition on commercial exploitation.
Notwithstanding the absence of the UNGPs, did the above private and state actors violate cultural and other human rights already recognized in international agreements?
In the Smithsonian debate, both camps- the American archaeologists & anthropologists’ and Walterfang’s – claimed to advocate for the protection of underwater cultural heritage. The American scholars correctly stated that the ideal situation was a not-for-profit academic excavation carried out over a longer period of time, in order to preserve important data on the ship’s crew and cargo. On the other hand, Walterfang and scholars engaged by Seabed Explorations based their strongest argument on feasibility: with rampant looting in Indonesian waters taking place then (for example, in the interregnum between their 1998 and 1999 excavations), even more artifacts and information would’ve been lost had they not carried out commercial salvaging.
It appears, therefore, that the Belitung salvaging is not a black-and-white cultural rights case, but rather one of degree. The American scholars sought fuller protection and respect for cultural rights, while the actions of Walterfang’s group sought the same (with the addition of the profit motive that, within reason, is guaranteed by the rights to livelihood and property), though at a lower, more “pragmatic” degree.
Fortunately, today’s commercial archaeologists and states have the UNGPs that provide tools to help minimize and address human rights risks, in addition to the UNESCO CPUCH that’s intended to enable states to better protect submerged cultural heritage.
To minimize and eliminate human rights risks, states would do well to clarify what they expect from businesses as regards cultural heritage through appropriate laws, policies, and National Action Plans on BHR.
Meanwhile, private archaeological enterprises could also meet international expectations on responsible business by applying the UNGPs, including by publishing their respective human rights policies and conducting Human Rights Due Diligence for every contracted project.
By taking these actions, both states and businesses undertaking archaeology would meet international standards on responsible business and help societies and countries develop adaptability and resilience.
Dedication
To my archaeology mentor Dr. Victor Paz and friends in UP Archaeological Studies Program (ASP) and the international field school of Catanatuan Archaeological and Heritage Project (CAHP) that I joined in two excavation seasons (January 2019 and January 2020). An earlier version of this article was published on 29 September 2021 on Medium.com.
