LAST NOVEMBER, this columnist visited Singapore to deliver some training for the Singapore Academy of Law and revisited one of many museums in the city-state, the Asian Civilisations Museum.
One of the most famous collections in this museum is cargo recovered in 1998 from a Chinese trading ship that sank in the Java Sea near Belitung island in Indonesia in the 9th century. Known as the “Tang Shipwreck”, the collection comprises more than 60,000 well-preserved ceramics produced in China during the Tang dynasty, together with various other items.
This column begins by discussing the international legal framework that governs shipwrecks and the protection of cultural relics or cultural heritage. It then discusses the discovery of another famous shipwreck – the Geldermalsen – as an example of some of the legal issues and controversies that arise in respect of shipwrecks. Finally, it outlines the legal position in the Chinese mainland.
International legal framework
Over the course of history, many ships have sunk as a result of weather conditions, conflicts or maritime accidents, such as hitting a submerged reef. The sinking of the Titanic is perhaps the best-known example of a maritime accident.
In addition to passengers and crew whose lives have tragically been lost, the ships have carried valuable cargo and precious items such as gold. As a result, there is an incentive on the part of commercial operators and “treasure hunters” to discover the location of shipwrecks and recover their “lost treasures”.
Given the historical and cultural significance of shipwrecks, many moral and legal issues arise when shipwrecks are discovered and their cargo is excavated. For example, should treasure hunters be able to claim ownership of cargo on the basis that they were the first ones to discover the cargo? Should they be able to exploit the cargo for commercial purposes? Or should the cargo instead belong to the country of origin? Or considered part of the shared cultural heritage of all of humanity?
And what about the question of whether shipwrecks should be disturbed in the first place: is it more important to preserve shipwrecks in situ (i.e. in their original condition) so that they remain available for research and historical purposes?
There is also the question of what should happen with shipwrecks that lie in international waters over which no country can claim sovereignty.
Today, the excavation of cargo from historic shipwrecks is primarily governed by domestic and international laws that are designed to protect underwater cultural heritage from treasure hunting and commercial exploitation.
One of the most important international law instruments is the UNESCO Convention on the Protection of the Underwater Cultural Heritage. Adopted in 2001, the convention acknowledges “the importance of underwater cultural heritage as an integral part of the cultural heritage of humanity and a particularly important element in the history of peoples, nations, and their relations with each other concerning their common heritage”.
The objectives and general principles of the convention are set out in article 2 and include:
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- Member states shall co-operate in the protection of underwater cultural heritage;
- Member states shall preserve underwater cultural heritage for the benefit of humanity in conformity with the provisions of this convention;
- The preservation in situ of underwater cultural heritage shall be considered as the first option before allowing or engaging in any activities directed at this heritage;
- Recovered underwater cultural heritage shall be deposited, conserved and managed in a manner that ensures its long-term preservation; and
- Underwater cultural heritage shall not be commercially exploited.
In addition, article 4 provides that any activity to which the convention applies will not be subject to domestic laws governing salvage operations or the “law of finds”, under which somebody who finds abandoned property can claim ownership. Such activity can only be undertaken when authorised by the competent authorities – and ensures that any recovery of underwater cultural heritage achieves its maximum protection.
The convention therefore attaches priority to cultural integrity and preservation, and prohibits commercial activities.
To date, 81 countries have ratified the convention and incorporated it into domestic law. Some countries, such as Australia and China, have not ratified the convention but have enacted domestic legislation that implements its key principles, such as the state’s ownership of cultural heritage in shipwrecks that are located in territorial seas.
The Geldermalsen wreck
The Geldermalsen was a Dutch trading ship that hit a reef off Bintan Island in Indonesia in 1752 and sank. Its cargo came to be known as the “Nanking [Nanjing] Cargo” as it was originally transported from Nanjing to Guangzhou, where it was loaded onto the Geldermalsen for shipping to a trading base in Indonesia for onward shipment to the Netherlands. The cargo included 250,000 pieces of blue-and-white porcelain made in China, from which 150,000 pieces were excavated. The treasure trove was intended for sale in both the Indonesian and European markets.
In 1986, the shipwreck was discovered and excavated by commercial salvage operators, who made no attempt to preserve the site or to record the archaeological details. The cargo was subsequently auctioned in the Netherlands for what was, at the time, a record price of GBP10 million (USD13.4 million).
Interestingly, the main cargo carried by the Geldermalsen was Chinese tea, which had become very popular in Europe. In fact, the porcelain was packed in chests of tea, which helped to preserve it. As the tea was pumped out of the shipwreck, the porcelain was discovered to be in mint condition. Gold bars were also found in the shipwreck.
But excavation of the cargo from the Geldermalsen was controversial. The commercial salvage operators claimed the site was in international waters, but the Indonesian authorities claimed the excavation took place in Indonesia’s territorial waters and challenged the legality of the operation.
In the photographs below are two items from the Nanking Cargo, which are in the possession of a private collector who has given consent for the photographs to be included in this column.
Legal position in China
Although not a party to the UNESCO Convention, China has a domestic legal framework governing the protection of cultural relics. The first paragraph of article 5 of the Law of the People’s Republic of China on Cultural Relics Protection (promulgated in 1982 and last amended in 2024) provides:
All cultural relics remaining underground or in the inland waters or territorial seas within the boundaries of the People’s Republic of China are owned by the State.
Further, the last sentence in article 34 provides:
No units or individuals may take excavated archaeological relics into their own possession.
The above-mentioned is confirmed by article 253 of the Civil Code, which provides as follows:
Cultural relics that the law provides belong to the State shall belong to the State.
In addition, there are specific measures issued by the State Council that regulate the participation of foreign firms in the salvage of sunken ships and objects in Chinese coastal waters.
As a result, any cultural relics that are found in the earth or in China’s territorial seas belong to the state.
This columnist has first-hand experience of the application of Chinese law in this regard. In 2001, when practising law as a foreign lawyer in Shanghai, he was approached by a couple of Chinese construction workers who had found a stack of gold ingots buried in the ground during the course of excavating a site as part of a foreign-invested construction project.
When the workers asked what they should do with the gold, this columnist told them he had confirmed the position with a Chinese lawyer and that, unfortunately, the gold belonged to the state.
Andrew Godwin previously practised as a foreign lawyer in Shanghai (1996-2006) before returning to his alma mater, Melbourne Law School in Australia, to teach and research law. Andrew is currently Joint Associate Director of the Corporate Law and Financial Regulation Research Programme at the Melbourne Centre for Commercial Law and Honorary Associate Director (Commercial law) of the Asian Law Centre. Andrew has acted as a consultant to a broad range of organisations, regulators and governments in Australia and abroad. He served as Special Counsel and Acting General Counsel of the Australian Law Reform Commission between 2020 and 2024.
