Wojciech Kowalski

The aim of this article is to formulate de lege ferenda conclusions that result from Poland’s ratification of the 2001 UNESCO Convention on the Protection of the Underwater Cultural Heritage. After a brief analysis of the principles of this Convention and comparing them with the relevant provisions of Polish Law, the author proposes five fundamental changes that should be made to this Law for greater effectiveness. These concern, in particular, the regulation of archaeological research, including the procedures intended for foreign entities and the participation of the Minister of Culture and National Heritage. Moreover, the article addresses the exclusion of the application at sea of the provisions on the search for „hidden or abandoned movable monuments” and the search for „shipwrecks and their remains”. Finally, it recommends moving the procedure for „searching shipwrecks” to the statutory level and unambiguously defining the legal status of monuments extracted from the sea, which according to the Convention „cannot be traded”.

After examining several different examples of reconstruction in the context of destroyed buildings and their ensembles, the author argues that the only acceptable form of analyzed activity is reconstruction sensu stricto, meaning in the narrow sense of this word, when it is based on proper documentation and aimed at restoring the building’s original authenticity. All other examples, like 19th century romantic castles or recent restorations of entire city centers, can only be classified as reconstructions sensu largo – in a very wide sense of the term. Then the change in legal approach to the concept of reconstruction is discussed. According to the Venice Charter, it was not accepted per se but slowly “legalized” with the passage of time, initially by placing the Warsaw Old Town on the World Heritage List in 1980 and then in documents like 2017 ICOMOS Guidance on post trauma recovery and reconstruction for world heritage cultural properties, where terms such as “modified reconstruction”, “partial reconstruction” and others have been defined. The more recent and generally drafted 2018 Warsaw Recommendation on recovery and reconstruction of cultural heritage fully accepts the term “reconstruction.” The paper ends with some remarks on the financial aspects of reconstruction. 

The blurring borders and disappearance of barriers in the international trade in goods leads to the phenomenon called globalisation of trade which includes the international and internal art market, too. With approval of various legal provisions, this market is controlled and limited not only in particular states, but also in the European Union. Parallelly, an important role is played by traditional general regulations, for instance those concerning liquidating results of wartime looting or “regular” theft committed in the time of peace. Finally, international cooperation is initiated in response to phenomena which are especially negative for the heritage in a particular country or countries.

Museums take active part in the art market by purchasing works and accepting donations or participating in expositions abroad. In other words, they take active part in the international “traffic” of art goods, which involves their transfer from one country to another, either in the case of trade or temporary presentation at expositions. Thus, they are exposed to all risks related to the fact that on the market there is a growing number of objects burdened with variable legal flaws. These may be stolen objects or objects from illegal excavations, frequently considered as theft, too, but also objects from organised robbery, either from old times (even WWII) or modern situations, for instance from Iraqi or Syrian territories which were occupied by the organisation called Islamic State. Origins of illegally exported goods are analysed in the same context, too, i.e. goods transferred abroad against respective binding provisions, if there are such provisions in the country in question.

As highlighted in the title, the Author analyses these issues from the point of view of museums, indicating potential risks and suggesting what can be done to avoid negative consequences.

In this article, the author argues that the 2001 UNESCO Convention introduced for the first time in the evolution of the law of the sea more radical solutions aimed at the protection of underwater heritage. One of them is a far-reaching limitation of the legal possibility to recover cultural heritage objects from international waters. According to the Convention’s provisions, such an option will constitute merely an exception to the general principle of their preservation in situ, i.e. the place where they have been located for at least 100 years. Recovery is acceptable only on the condition that leaving these objects in the sea will not fulfill the objectives of the Convention and will bring about detrimental effects in practice. It is also possible for the purpose of scientific studies. In all such cases, the methods and techniques used must be as non-destructive as possible and recovered objects shall be deposited, conserved and managed in a manner that ensures their long-term future preservation. At the legal level, they receive the special status of res extra commercium, which means they shall not be traded, sold, bought or bartered as commercial goods. The author ends his article concluding that measures of prevention and sanctions adopted in the Convention also demonstrate its strength and positive development, especially in comparison with the previous legal situation. Their enforcement provides a real chance that the principles of the Convention will be followed properly by States to ensure and strengthen the protection of underwater cultural heritage and will help stop the unauthorized exploitation of historical wrecks.