Tempest in a teacup: Business & Human Rights and commercial archaeology
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- dubbed the “Batu Hitam (Black Rock) Treasure” — found in one location outside of China. Through the Arabian dhow (traditional sailing vessels of the Red Sea and Indian Ocean), archaeologists have also learned about maritime trading and business routes between China and the Middle East in 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, engage the services of private salvaging companies to carry these out.
Operations to excavate the Belitung shipwreck in 1998 and 1999 were financed and carried out 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 allegedly 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 Underwater Archaeology Resolutions Adopted by ICMM, Barcelona, Spain (1993); ICOM Code of Ethics for Museums (1986, revised in 2004); 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 can see two important themes emerge from 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 and 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 (at least 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, mining, and development projects, as in the Philippines);
- Tourism;
- Urban regeneration;
- Direct sale of material or “trading” in antiquities;
- Marketing and branding;
- Private museums; and
- Jobs created by archaeological research and conservation (Burtenshaw, 2017).
What human rights- recognised and protected by international instruments- are often impacted in the practice of 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 highlighting potential or actual violations of cultural rights, including the right to participate in cultural life and the right to science. (See also Nie, 2015)
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.
Towards resilience
Given the close relationship between archaeology and the private sector, it’s important that states, businesses, and civil society organisations in all countries conduct baseline studies and other research on this important, but often overlooked, nexus.
In the meantime, states and businesses must mitigate or eliminate cultural, scientific and other human rights risks using the UN Guiding Principles (UNGPs) on Business and Human Rights (BHR) as guidance.
To protect human rights, states must set out clear expectations for businesses to respect these and carry out relevant programs and actions related to their protection, respect, and fulfillment through National Action Plans (NAPs) on BHR.
To meet international expectations on respect for human rights, commercial archaeology enterprises (contracted by companies to perform services) and related business enterprises- by themselves or in consultation with BHR resource persons- must:
- Publish their respective human rights policies; 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 controversy on the Belitung Shipwreck highlights the impact of commercial archaeology on cultural and other human rights. 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 would 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 steps, both states and commercial archaeology enterprises would meet international standards on responsible business that the UNGPs clarify, and prevent a similar global controversy on cultural heritage and science from erupting again.
Dedicated to my archaeology mentor Dr. Victor Paz and friends in University of the Philippines-Archaeological Studies Program (UP-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).
