Revisiting heritage in the ocean: common heritage of [Hu]mankind, maritime heritage and beyond?

ABSTRACT

By zeroing in on the term ‘heritage’ in the most important international legal instrument on oceans – the 1982 Convention on the Law of the Sea (LOSC), this article explores how the concept of the Common Heritage of [Hu]mankind and maritime heritage are produced and deployed in the global legal project of ocean-ordering and the implications thereof. The Common Heritage of [Hu]mankind concept embodies and enacts a dominant resource-centric framing of the ocean. This framing prioritises and valorises the material and economic value of the deep seabed, thereby transmuting it into an oceanless exploitable common. The LOSC, with minimal cultural preoccupation, also conceptualises and confines maritime heritage within a narrow land-based and material-centric understanding of heritage that often prioritises state control and claims. This is because the LOSC is constrained and shaped both by the metaphysical, geographical, and legal tendency of ocean parcelisation and by the authorised heritage discourse that conditions how heritage is understood and practiced. We conclude by suggesting taking the Middle Passage as an analytical provocation, that is to recognise the mutually constitutive and constituting relationship between the Middle Passage and the (Atlantic) Ocean, to enable critical reflections and alternative perspectives on heritage-making in ocean environment.

KEYWORDS:

• Common heritage of [Hu]mankind
• maritime heritage
• oceans
• deep seabed
• middle passage
• The Atlantic Ocean

But I am speaking of exploring an unknown world at our doorstep. It is really our last frontier here on earth. I am speaking of mountain chains that are yet to be discovered, of natural resources that are yet to be tapped, of a vast wilderness that is yet to be charted. This is the sea around us.

US President Johnson’s remarks at the Commissioning of Oceanographer, 1966

The sea-bed and the ocean floor are a common heritage of [hu]mankind and should be used and exploited for peaceful purposes and for the exclusive benefit of [hu]mankind as a whole.

Arvid Pardo at the the United Nations General Assembly,1967

One day, when we had a smooth sea and moderate wind, two of my wearied countrymen who were chained together … preferring death to such a life of misery, somehow made through the nettings and jumped into the sea: immediately another quite dejected fellow … also followed their example … However two of the wretches were drowned, but they got the other, and afterwards flogged him unmercifully for thus attempting to prefer death to slavery. In this manner we continued to undergo more hardships than I can now relate, hardships which are inseparable from this accursed trade.

The Interesting Narrative of the Life of Olaudah Equiano, 1789

In 2021, the southwestern Pacific country Nauru triggered the ‘two-year rule’ that gave the International Seabed Authority (ISA) a deadline to finalise its rules for environmental regulation (Reid 2021). This action sought to accelerate the move of commercial deep-sea mining (DSM) beyond the stage of exploration so that the seabed beyond the limits of national jurisdiction – a zone recognised by the 1982 Law of the Sea Convention (LOSC) as the Common Heritage of [Hu]mankind (CHH)¹ – could finally be exploited. Not long before Nauru’s proposal, a group of researchers (Turner et al. 2020) proposed that memorial ribbons be put on ISA maps to depict major routes of the Middle Passage across the Atlantic so that potential mining or any other activities on the deep seabed could be sensitive to the cultural heritage of the slavery trade.

These two proposals betray distinct imaginaries of the ocean with its seabed. During the 1960s, a decade of techno-optimism with a zeal for exploring the deep seas, President Lyndon B. Johnson (1966) at the commissioning of the US research ship Oceanographer, portrayed the ocean as ‘the last frontier here on the earth’ abundant in natural resources. Nauru’s recent proposal echoes the similar craving for actualising DSM, even if large degrees of ecological, political, and social uncertainty continue to exist as a result of DSM’s operation ‘at the intersection of a geologically dynamic and fluid environment’ (Childs 2022). While not categorically opposing DSM, the ribbons proposal points at a different possibility. It imagines the ocean as an extraordinary archive of historical, socio-cultural, and even spiritual importance. The Atlantic seabed in this case is foregrounded as the ‘final resting place’ (Turner et al. 2020) for those who lost their lives during the history of the Middle Passage. The passage quoted at the beginning of this article that refers to the experience of Oladauh Equiano vividly describes how the appalling and traumatic conditions of the transatlantic journey rendered suicide become a way for some enslaved Africans to conquer their desperate condition and regain a sense of control. As a moment of massive circulations of peoples (like Olaudah Equiano), goods, practices, ideas and more, the Middle Passage became deeply entangled with the process of empire-making and global capitalist expansion, and ‘ultimately set the foundation for our modernity in its many forms’ (Thiaw and Mack 2020, S146).

Interestingly, whether it is Nauru’s attempt to precipitate the arrival of the age of deep-sea mineral exploitation or the proposal to put memorial ribbons relating to the Middle Passage on the ISA maps, heritage becomes a common point of reference. Both proposals refer to the same major international legal instrument – the 1982 LOSC – to justify and legitimise themselves. As the ‘constitution of the oceans’, the LOSC lays down a comprehensive legal regime for all matters concerning the world’s ocean – including heritage in the ocean – and remains the recognised framework within which any legal updates to meet new challenges to ocean governance occur (Treves 2008).

This research, through an analysis of the codification processes and specific articles of the LOSC, seeks to interrogate how this constitution of oceans articulates and produces heritage and with what kinds of implications. On an epistemological and analytical level, we are primarily informed by the recent maritime turn in humanities and social sciences to engage with ocean ontologies. Under the umbrella term of critical ocean studies, these efforts, to name a few, question dominant approaches to ocean governance (e.g. Barbesgaard 2018; Campling and Colás 2021; Cardwell and Thornton 2015; Germond‐Duret 2022; Mansfield 2004), promote thinking with oceanic species to shift away from human-centred understandings of the oceans (e.g. Alaimo 2016; DeLoughrey 2017; Tien and Burmann 2022), or explore the indigenous, black, and creolised epistemologies of water, islands, and the oceans in order to decolonise established knowledge on these watery spaces (DeLoughrey 2010b; Hauʹofa 2008; Lobo and Parsons 2023; Sharpe 2016; Walcott 2021). These expansive literatures, diverse in their disciplinary approaches and objects of study, find their common ground in urging a change in perspective – rather than reproducing and institutionalising the imaginary of the ocean as merely an empty timeless space beyond history, we need to understand the ocean in and of itself and to pursue ‘a direct engagement with the ocean’s materiality – its depts, its mobilities, its opacities, its temporalities. (Steinberg 2022, 4)’ However, with a few exceptions (see, e.g., Boswell 2022; Boswell, O’Kane, and Hills 2022; Steinberg 2022), this epistemological sensitivity of the ocean within critical ocean studies has not been widely taken up by heritage studies. As Winter (2023) rightly points out in this special section, even critical heritage theory has rarely reflected on its disciplinary terracentrism.

By focusing on the current global legal processes of heritage-claiming and -making in the maritime domain, this article represents an attempt to intensify dialogue between critical ocean studies and heritage studies. Our primary aim is not to propose alternative visions which seek to establish truths about the ocean or the heritage therein. Instead, we endeavour primarily to desediment (N. D. Chandler 2014) how the making of international laws like the LOSC prioritises and (re-)produces particular imaginaries of the ocean and the heritage therein. These global legal codification processes render their own understanding and definition of the ocean and the heritage therein appear as natural, given, and universal (Salemink 2021). Our analysis critically demonstrates that the seabeds beyond national jurisdiction are claimed and recognised by the LOSC as a ‘common heritage of [hu]mankind’ primarily for resource extraction. When approaching maritime (cultural) heritage, the LOSC also constructs it primarily as fixed material things in the ocean and privileges its connections to land and nation-states over its inherently fluid qualities. Returning to Turner et al’.s memorial ribbons proposal (Turner et al. 2020), we then propose taking the Middle Passage as an analytical provocation to invite further possibilities to reimagine heritage-making in the ocean. We do not intend to grapple with the Middle Passage in all its complexities but strive above all to acknowledge the Middle Passage and the Atlantic Ocean as intimately entangled and mutually constitutive. Our goal is to explore how this critical and relational positionality may enable the deconstruction and denaturalising of existing material- and terra-centric approaches to heritage-making in the ocean.

This paper is structured into the following four parts. In the next two sections, we focus on the origins, formation, and implications of the CHH concept conceived by the Maltese ambassador Arvid Pardo in 1967. We argue that Pardo’s proposal to subsume the deep seabeds under the CHH, along with the global ocean law-making process it triggered, is primarily based on a resource-centric framing of the ocean. It entrenches the metaphysical and geographical tendency to parcelise the ocean and disregards the cultural dimension of it. We then centre on two Articles pertinent to archaeological and historical objects conservation in the LOSC. By examining the way how the LOSC envisages human-activity related traces in the ocean as maritime heritage, we contend that these two Articles still confines the ocean’s cultural significance within a material-centric heritage idea innately associated with modern nation states. The two Articles are shaped by and within the authorised heritage discourse (AHD) and consequently do not defy but reaffirms practices of ocean zoning. The culturally minimised principle of CHH and the AHD-based maritime heritage rely, rather awkwardly, on a common and highly productive emphasis on materiality and terra-centrality. This particular emphasis reproduces and entrenches the zoning practices that concretise the current global ocean-ordering project. We conclude by turning to the case of the Middle Passage to explore how a particular engagement with it may become enabling for critical reflections on and reimaginations of the ocean and of maritime heritage-making.

Parcelising the ocean through horizontal extension and vertical dissection

Before 1945, the seas had been generally categorised into two zones: high seas governed by the Grotian doctrine of Marem Liberum (the Free Sea) since the seventeenth century and the restricted application of Marem Clausum (the Closed Sea) to territorial seas, usually of 3 miles, under the sovereignty of coastal states. The 1945 Truman Proclamation marked a radical change in the legal geography of the ocean and ‘intensified the trend toward a fragmented order from which there was no return’ (Glazer 1974, 282). The Proclamation articulated the concept of continental shelf and claimed jurisdiction over the natural resources therein contiguous to its shore. The promulgation of this concept represents a ‘Grotian moment’ (Scharf 2013) in customary international law due to its rapid emergence with scant opposition – within 5 years, more than 30 coastal states followed the US practice to lay similar claims to continental shelf.

Indeed, the Proclamation temporally accelerated and spatially heightened the effort to territorialise the ocean space. This spatial parcelisation is predicated on and powered by the logic of land domination (later officially codified as a legal principle in the 1982 LOSC), and it is enabled by and enabling of two spatial techniques – malleable horizontal-extension and surgical vertical-dissection. In order to justify the exclusive jurisdiction over ‘the natural resources of the subsoil and sea bed of the continental shelf’, the Proclamation constructs horizontally the continental shelf as ‘an extension of the land-mass of the coastal nation and thus naturally appurtenant to it’; and vertically, it is materialised into geophysical forms and further imbued with terrestrial characteristics by being dissected from the waters above it so that the character of this water body as high seas can be preserved (Presidential Proclamation No 2667 1945).

Due to the rapid development of legal practices engendered by the Proclamation, the maritime domain became a top preoccupation for the International Law Commission (ILC), an organ created by the UN General Assembly (UNGA) in 1947 to facilitate the codification of international law. This eventually led to the convening of the first UN Conference on the Law of the Sea (UNCLOS I) in 1958 and the adoption of four separate conventions relating to the law of the sea. These Conventions, however, left many contentious issues unresolved including the limit of the continental shelf. Two criteria were used to delineate its limit – ‘outside the area of the territorial sea, to a depth of 200 m or, beyond that limit, to where the depth of the superjacent waters admits of the exploitation of the natural resources of the said areas’ (Convention on the Continental Shelf 1958). Also, the exploitability criterion rendered the limit of the continental shelf conditional upon technological advancements and hence theoretically open-ended. This use of exploitability as criterion lays bare the fundamental objective of geographically and legally giving shape to the continental shelf, which is resource extraction and economic exploitation. Consistent with the Truman Proclamation, the 1958 Geneva Convention on the Continental Shelf recommitted itself to the separation between the continental shelf and its superjacent waters, with the latter legally recognised as high seas. The spatial techniques of horizontal extension and vertical dissection were hence practised, reaffirmed, and normalised in the making of the Geneva Conventions. It paved the way for the emergence of Pardo’s CHH concept in 1967, which triggered a process that eventually not only made the deep seabed a CHH, but also legally stabilised the unprecedented parcelisation of the entire ocean. In the next section, by parsing through (Pardo’s 1967) speech in the UNGA and the ensuing codification process of the LOSC, we examine how the making of the deep seabed as a CHH was enabled by and mediated through the construction of the deep seabed and, by extension, the ocean as an abstract terrestrial space of resources and properties rather than an agentic living whole of history, culture, and affect.

Heritage as resource: making the deep seabed as the CHH in the LOSC

Paralleling to the legal developments outlined above, technological capabilities in ocean-related exploration and exploitation progressed steadily during the 1960s. Politically, this decade witnessed a wave of decolonisation across the Global South. The large majority of these newly-independent countries ‘played no part’ in the making of the Geneva Conventions; with their hard-fought sovereignty, they were now eager to make their voice heard to ‘preserve political independence and secure economic independence’ (Ferreira 1979, 91–92). Malta, the home country of Arvid Pardo who advanced the CHH concept in 1967, was no exception in this regard, having gained its independence from Britain in 1964.

Pardo’s speech (Pardo 1967) in the UNGA on the CHH proposed that: (1) the deep seabed and its resources be viewed as a CHH for all humankind of present and future generations, with preferential consideration given to the needs of developing countries should potential benefits be derived from the seabed resources; (2) claims to sovereignty over the seabed be frozen until a clear definition of the continental shelf is articulated; and (3) a comprehensive treaty be drafted to safeguard the international character of the seabed and an international agency be established to ensure that national activities on the ocean floor will conform to the proposed treaty.

Pardo’s proposal was built upon and conditioned by the historically specific politico-legal-techno sediments. While his commitment to distributive justice in both spatial and temporal dimensions was inspiring, the way he conceptualised and articulated the CHH did not escape the parameters – and the attendant limitations – resulting from the particular historical conditions. Rather, his plan to render the deep seabed as the CHH was anchored in and contributed to a terra- and anthropo-centric imaginary of the ocean. It reduced and abstracted this vibrant and agentic hydrosphere into resource in order to legitimise the expropriation and extraction of it.

During the 1960s, the continued technological advances in ocean exploration fuelled Pardo’s concern over the potential appropriation by technologically advanced powers of the seabed beyond the (still unclear) limit of national jurisdiction. His concerns also found evidence in the 1958 Geneva Convention on the Continental Shelf, which strengthened the legal tendency to assign sea-bottom sovereign rights to the coastal state. Pardo’s decision to merely reserve this parcelised portion of the ocean for the benefits of humankind was out of ‘a practical necessity’ to pre-empt opposition from great powers (Borgese 2000, xxviii). As a diplomat eager to internationally ‘establish a voice’ (Ranganathan 2016, 708) for Malta, he avoided taking issue with the then well-established or emerging legal substrate – that of high seas and the continental shelf, respectively. Nevertheless, this practical choice further entrenched the pre-existing geographical, metaphysical, and legal inclination to compartmentalise the ocean through horizontal extension and vertical dissection. Yet, after being subject to a violent human-dominated demarcation, the ocean as an ecological whole could no longer exist ontologically in its own sense, because it was disintegrated into artificial constituents and alienated from its own living complexity and dynamic rhythms.

What stands out from Pardo’s speech is how his justification for making the deep seabed as the CHH was narrated primarily through a monetary and utilitarian lens. After having elaborated the ‘valuable’ resources – especially petrol and gas – in the continental shelf as well as the ‘spectacular progress’ achieved in their exploration and production over the past decades, Pardo (1967) highlighted the need to ‘examine whether the vast, mysterious submarine areas plunged in perpetual darkness that lie beyond the continental shelf contain valuable known resources and whether such resource may be commercially exploited on a large scale in the near future’. The deep seas and their seabeds were valued for their economic potential as the store of two main types of resource: food as a protein source to sustain population explosion, and minerals as an energy source to satisfy industrial growth. Pardo (1967) spoke of the ‘clearly foreseen possibilities’, within 15 years’ time, of using ‘dolphins as sheep-dogs’ and ‘air-bubble curtains to delimit and protect fish ranges’ so that ‘the entire world food picture’ would be transfigured. As to mineral resources, Pardo (1967) counted on the ‘conservatively’ calculated reserves estimate by Engineer John Mero to portray the deep seabed as a trove of ‘untapped [mineral] wealth’ of quasi-infinite abundance. Non-linear and sudden leaps in technological capabilities to exploit these minerals were envisaged as a quasi-certain scenario to occur. Humans’ reach towards the deep seabed was not only enabled by and mediated through technologies, but would eventually be a physically sedentary one – a form of effective occupation through the ‘colonies of aquanauts’ and human dwellings at ‘the summits of the great submarine mountain ranges’ (Pardo 1967).

The thin knowledge on the deep seabed until the 1960s did not invite cautiousness but left ample room for Pardo’s sometimes reckless speculation.² However, at the time, Pardo’s fanciful account of the deep seabed created a powerful and soon-realisable utopia revolving around the seabed. It proactively anticipated the future appropriation of the seabed and therefore justified Pardo’s proposal to make this artificially parcelised maritime area as the CHH. Spatially, the technique of horizontal extension and vertical dissection enabled Pardo to define the deep seabed as a non-place (Augé 2008) devoid of human and social experiences or, more precisely, as an oceanless non-place. This representation with its emphasis on the placelessness (Germond‐Duret 2022) of the deep seabed was most conspicuous in his paralleling of mining activities on land and on the seabed. Deep-sea mining was claimed to enjoy ‘many advantages’ from a ‘commercial’ perspective: avoidance of endless negotiations with the host country, minimum labour costs, and limited transport expenses (Pardo 1967). This cost-effectiveness framing with scant consideration of the living complexity of the ocean was possible precisely because the seabed was assimilated as a socially, culturally, and historically empty but resource-abundant terrestrial non-place ready for techno-legal imaginaries and interventions (Roszko 2023). It conjured up the memory of colonial rendition of non-European spaces as free and empty lands – and the ensuing physical grabbing thereof – that remained fresh to many newly independent countries. The national appropriation of the deep seabed was hence constructed as a temporally immediate reality that necessitated urgent reactions from the postcolonial states.

The resource-centric framing of the deep seabed as the last frontier also served a practical political purpose to garner support for his proposal from the growing block of developing countries. These countries were at the time committed to pursuing economic sovereignty and equality by uprooting their dependency on economic aids. It also explained why Pardo construed the deep seabed primarily as an anthropo-, state-centric ‘[re-]distributive common’ (Constantinou and Hadjimichael 2021, 364) that demanded equitable share of potential material and technological wealth resulting from the imagined incoming deep-sea mining feast. The seabed utopia Pardo imagined awoke great interest among developing countries, which hitherto took little notice of this parcelised sea area, but now saw in it the potential for engineering a new world order of substantial economic justice (Meyer 2019; Ranganathan 2016, 710–11). Triggered by Pardo’s speech, the deliberations on the deep seabed among developing countries informed, converged with, and further fuelled the then incipient yet buoyant New International Economic Order (NIEO) movement (Kirton and Vasciannie 2002, 83–84). The seabed along with the CHH principle was also recognised in the 1974 UNGA Resolution 3281 as the legal component of the NIEO – ‘the most ambitious project of anticolonial world-making’ (Getachew 2019, 144).

This construction of a resource bonanza-in-waiting on the ocean floor, which appealed to the Third World, was enabled by the temporal collapsing or the even suppression of the past in the deep seabed. While Pardo (1967) extolled the deep seas as ‘the womb of life’ and claimed that humans embodied the ocean through their ‘salty bitterness’ of tears, this intimate and spiritualised human-ocean connection was temporally restricted to the ‘remote past’; and ‘man, the present dominator of the emerged earth, is now returning to the ocean depths’. Hence, humans were not viewed integrally and continuously as part of the ocean but rather as hierarchically superior to it and therefore entitled to exploit it. More crucially, time between the remote past and the now of Pardo’s speech was compressed and collapsed with any human-ocean historical entanglements simply obliterated. Indeed, even when the past was mentioned in passing, it was still bound up with the resource-centric framing – it was objectified as ‘sunken treasures’ and ‘archaeological treasures’ lying on continental shelves and the ocean floor, whose ‘economic value is sometimes considerable’ (Pardo 1967).

In Pardo’s speech, the deep seabed was hence essentialised as a mere resource (container) under the guise of being the CHH. It was spatially assimilated as land able to exist independently of and separately from the oceanic whole, temporally erased from any relational entanglements with human history, and ontologically reduced into an object of economic value waiting for justifiable sovereign and human exploitation. His speech ultimately triggered and set the scene for the convening of the Third United Nations Conference on the Law of the Sea (UNCLOS III) in 1973 that reviewed the law of the sea as a whole.

Pardo’s resource-centric framing with an overriding interest in the economic and monetary value of the deep seabed set the fundamental tone for the UNCLOS III process. This framing mutually informed and cross-fertilised with the NIEO movement that dedicated itself to global economic justice (Kirton and Vasciannie 2002). The UNCLOS III negotiations were thus pre-structured and locked into the North–South divide with developing countries obsessed with how to benefit from the fantasised seabed bonanza. A resource-centric imaginary of the seabed – and, more broadly, the ocean – was further cemented and embraced during the negotiations; it over-determined the negotiation process cognitively and politically, leaving minimal room for epistemologically and critically questioning whether a parcelised ocean could ontologically, ecologically, and culturally exist as such.

The final 1982 LOSC marked the culmination of human’s effort to parcelise the ocean and institutionalised ‘a multifaceted ocean-space construction developed over the previous 200 years of industrial capitalism’ (Steinberg 2001, 149). This legal boundary-making exercise apportioned and reified the fluid ocean into delimited zones: the territorial sea, the contiguous zone, exclusive economic zone (EEZ), the continental shelf, archipelagic waters, and the deep seabed. Pardo’s main interest area – the deep seabed – was consecrated as the Area, with it and its resources being officially recognised as the CHH. Whilst the early stage of the UNCLOS III negotiations was characterised by ‘some genuine epistemic openness’ on the political economy of deep-sea mining, developing countries’ stances were later often delegitimised as reflecting unrealistic ideology or even being professionally incompetent (Ranganathan 2020, 178). Many South-proposed redistribution mechanisms were diluted in the final text of the LOSC, despite the designation of the deep seabed as the CHH. Yet, even with this weakened version, many developed countries still refused to sign the treaty; and the 1994 Implementing Agreement on Part XI of the LOSC further restructured the deep-sea mining regime based on market principles and hence cleared the way for a more market-driven ‘competitive model’ of seabed mining (Ranganathan 2019; Stephens 2022). Some 20 years after the convening of the UNCLOS III, the deep seabed retains only the façade of being a CHH. Initially constructed as a ‘distributive common’ (Constantinou and Hadjimichael 2021, 364), this parceliased area lost its radical – yet still human-centric – feature of redistributive justice after the adoption of the Implementing Agreement. It was transmuted and subdued into a merely exploitable common, with the rights to access, use, and benefit from it catering practically to only the privileged few.

The making of maritime heritage: the LOSC and beyond

One major consequence of the dominant resource-centric framing is that the 1982 LOSC has dedicated minimal attention to the cultural dimension of the ocean, with only two Articles − 149 and 303 – pertaining to it. Before our examination of how ocean-based cultural heritage is made by the LOSC and other key international legal instruments, a cursory look at the differentiation between maritime and marine is incorporated here to facilitate the discussion. In essence, ‘maritime’ and ‘marine’ are related yet distinct. Both terms denote the sea – ‘maritime’ focuses on human activities and practices ‘on’ the sea surface while connected with the land, while ‘marine’ concentrates on the natural elements and processes occurring beneath the sea surface, including non-human life and resource extraction via maritime activities (Roszko 2021, 312). Following the distinction, we argue that the way how the cultural dimension of the ocean is defined as maritime heritage by the LOSC and later by UNESCO’s Convention on the Protection of the Underwater Cultural Heritage (UCH) remains confined within the overarching resource-centric framing of the ocean. Moreover, it is also rooted in an anthropocentric philosophy and the AHD – a hegemonic discourse about heritage, which acts to constitute the way we understand and practice heritage, naturalises historical significance and the archaeological as the innate values of heritage, and focuses on materiality, monumentality, sites, buildings, historical depth, and the pleasing part in history and culture (Smith 2006, 29). This (legal) making of maritime heritage is built upon the parcelisation of the ocean and the terra-centric understanding of heritage, both of which underpin and solidify the dichotomy between maritime and marine, thereby neglecting the voluminous, fluid, and dynamic qualities of the ocean and potentially eclipsing non-western oceanic discourses.

Despite the absence of the term ‘heritage’, both Articles 149 and 303 make a range of existential assumptions about the nature of ocean-based heritage by assuming a shared common ground of conservation in the parcelised marine environment. Existential assumptions are assumptions about something’s existence, which is unsaid in texts but assumed to be known as common ground for both text producers and text consumers (Fairclough 2003, 55). With these two Articles addressing, respectively, the preservation of ‘archaeological and historical objects’ and ‘archaeological and historical objects found at sea’, the LOSC naturalises the cultural concerns about the ocean as only related to human activity.

By stating ‘all objects of an archaeological and historical nature found in the Area’, and ‘archaeological and historical objects found at sea’, these two Articles define the cultural dimension of the marine context through the taken-for-granted values embedded in archaeology and history. These values, as a shared common ground, are employed in a self-referential way, without further explanation or justification. The common ground assumed here is also used naturally to shape, legitimise, and reinforce national heritage on land – the enshrined expertise and knowledge of archaeology and history (Kane 2003; Meskell 2001, 2002, 2003; Smith 2006). As the only ‘science’ recognised in the AHD, archaeology is considered having the ability to unearth truth of the past that does not have objective, written records (Smith 2006, 284).

The lawmakers of the LOSC were borrowing the authority of the modern scientific discipline of archaeology, unsaid but assumed as common knowledge to build the epistemological framework of maritime heritage. These assumptions therefore demonstrate that maritime heritage, akin to the idea of cultural heritage advanced by the 1972 World Heritage Convention, is also constructed by and within the western AHD. It may not be coincidental that the LOSC and the World Heritage Convention share the common emphasis on archaeological and historical values, because the origin of Article 149 could be traced to the proposals from Turkey and Greece between 1972 and 1973, around the same time when the World Heritage Convention was adopted.³ What is also assumed in the two Articles is the material nature of maritime heritage. ‘Things’ in the ocean are constructed in a self-referential manner as the target of management, and the taken-for-granted recognition of preservation naturalises the legitimation of materials as the only form of heritage in the marine context. As Smith (2006, 4) points out, despite its changes and development in various cultural and historical contexts, the AHD nonetheless focuses on and emphasises ‘Things’.

Apart from the emphasis on the disciplinary knowledges of archaeology and history and the materiality, the way the LOSC approaches the cultural dimension of the ocean also shares with the cultural heritage a strong connection to nation and nationhood, which is rooted in the emergence of nationalism and liberal modernity in the nineteenth century (Smith 2006, 17). Article 149 touches on maritime heritage in the Area, whereas Article 303 addresses the preservation of maritime heritage in parcelised areas under national jurisdiction. Built on the premise of a strict separation between jurisdictional and non-jurisdictional control, these two Articles naturalise the granting of the authority to the maritime past to modern nation-states; this act of granting can sometimes create an illusion of a legitimate source of power, although in reality no such source exists. Additionally, the origin of Article 149 – the two proposals submitted by Greece and Turkey in the early 1970s – also indicates that one of the fundamental incentives to take the cultural dimension into the consideration during the making of the LOSC is to preserve the nationhood associated with the material possessions located in the Area.

Article 149 states:

All objects of an archaeological and historical nature found in the Area shall be preserved or disposed of for the benefit of [hu]mankind as a whole, particular regard being paid to the preferential rights of the State or country of origin, or the State of cultural origin, or the State of historical and archaeological origin.

The semantic and grammatical relations in Article 149 reveal how this legal instrument, with an illusory source of power, bestows control on modern nation-states in a natural manner. The repetitive usage of ‘archaeological and historical’ is somewhat odd. With the Article title included, this expression appears three times in Article 149. Semantically, ‘all objects of an archaeological and historical nature found in the Area’ in the first half of the sentence includes objects whose ‘State of historical and archaeological origin’ could be identified. What remains unsaid here is that there might exist objects of an archaeological and historical nature, whose State of historical and archaeological origin could not be confirmed. In this case, the archaeological and historical values would then be attributed to ‘[hu]mankind as a whole’ – in a manner similar to the principle of CHH. Archaeological and historical values are thus classified into two types, one connected to identifiable states, and the other unable to be associated with any states. With this categorisation, Article 149 assumes a hierarchy of archaeological and historical values by granting the identified States priority in cultural heritage management. The archaeological and historical significance with no identifiable states is then attributed to ‘[hu]mankind as a whole’ by conferring an absent agent with authority to preserve or dispose of objects of such values.

The omission of an agent and the contrastive relation in the one-sentence-long Article 149 potentially provides scope for nation-states to claim maritime heritage in the Area. A passive clause without an agent (‘shall be preserved or disposed of’) is employed in the main clause. The remaining part of the sentence is a participial phrase, functioning as a subordinate clause, modifying the main clause, and contains an embedding relation (‘being paid to … ’). An agent that should pay particular regard to the preferential rights of the three types of nominated states is elided too. The passive clause leaves space for diverse interpretations and potential negotiations. One possibility is to assign the management (‘preserved or disposed of’) to a governing body not only superior to but also acknowledging modern nation-states’ sovereignty.⁴ It is noteworthy that the omission of an agent does not deny the possibility that the action could be carried out by any individual, organisation, or state ‘for the benefit of [hu]mankind as a whole’. Liu (2011) argues that the main clause of Article 149 embodies the general approach, whereas the subordinate clause manifests the Lex specialis approach that guarantees the identified states’ ‘preferential rights’. And, semantically, no conjunction often implies an implicit semantic relation of elaboration (Fairclough 2003, 89). Therefore, the elaboration relation embedded in Article 149 suggests that only maritime heritage in the Area identified as not being connected to any state be managed as the CHH. Nationhood is assumed to be the premise on which any potential actions about ‘all objects of an archaeological and historical nature found in the Area’ would be predicated. This emphasis on identifying national owners of the material-centric maritime past risks not appreciating and acknowledging the cultural heterogeneity and hybridity that emerge through and in (and constitute) plural transoceanic histories and activities. Neither Article 303 nor the UCH Convention diverges from this emphasis. We now turn briefly to UNESCO’s UCH Convention to explore how the making of maritime heritage in this legal instrument remains predicated on material-centric approaches to heritage and confined within the LOSC-imposed parcelisation of ocean that prioritises states’ control and claims.

In 2001, UNESCO adopted the UCH Convention to propose an international regime to protect UCH and fill the gaps left open by the 1982 LOSC. Before the adoption of the UCH Convention, the LOSC was the only international law that referred to the protection of ocean-based cultural heritage. To a large extent, the UCH Convention was conceived and drafted to be a convention complementary to the LOSC. According to the drafting committee, the protection regime embodied in the LOSC Articles 149 and 303 contains some major deficiencies, including the ‘complex jurisdictional issues inherent in protection of the heritage beyond the territorial sea’ (O’Keefe and Nafziger 1994, 397), the potential prejudice of salvage activities permitted by the LOSC, and the ambiguity of the UCH definition (O’Keefe 1996, 298). Fully aware of these issues, the committee sought primarily to establish a legal instrument to regulate treasure hunting and salvage operations beyond the territorial seas of coastal states (O’Keefe and Nafziger 1994, 391).

One of the key inputs by the UCH Convention is to introduce a protection regime to exclude the ‘first come, first served’ approach for any heritages found on the EEZ and the continental shelf (Scovazzi 2004, 129–31). When it comes to the UCH in the Area, the proposed protective regime is akin to, but more explicit than, Article 149 in its elaboration of agents that could take actions. Unlike the LOSC that left beyond the 24-mile limit (the contiguous zone) from being ‘free for all’ (Strati 1991, 890), the UCH Convention includes all zones under the protection regime. Article 10(2) of the UCH Convention (2001) stipulates that a State party ‘in whose EEZ or on whose continental shelf UCH is located has the right to prohibit or authorise any activity directed at such heritage to prevent interference with its sovereign rights or jurisdiction as provided for by international law including the LOSC’. This constitutes an expansion of the rights of the coastal State (Bautista 2012, 19).

The UCH Convention therefore goes beyond the strict jurisdictional limits established in the LOSC in order to protect the UCH. It explicitly refuses to subject ‘[a]ny activity relating to underwater cultural heritage … to the law of salvage or law of finds’ (Article 4 in the UCH Convention) out of the concern that the prevalence of salvage law envisaged by the LOSC would drive treasure hunters to race to extract valuable UCH objects for economic gains. However, the UCH Convention does not fundamentally challenge the ocean boundary-making exercise enacted by the LOSC; instead, it builds on, operates within, and re-affirms the LOSC’s institutionalised parcelisation of the ocean into a variety of maritime zones.

Another major change brought about by the UCH Convention lies in its definition of cultural heritage in the ocean. The concept of UCH was conceived and employed during the codification process of the UCH Convention between the late 1980s and 2001 to fill the conceptual gaps left by the LOSC. However, akin to the LOSC, the ‘traces of human existence’ acknowledged by the UCH Convention are also understood and framed primarily through an archaeological lens. This is particularly evident in the 1996 Charter that was appended to the UCH Convention as the Annex. The 1996 Charter inherited the core definition of cultural heritage as ‘archaeological heritage’ conceptualised in the ICOMOS Charter for the Protection and Management of Archaeological Heritage, 1990 to underpin and advance its own definition of the UCH. By enshrining archaeology and ‘archaeological methods’ that aim primarily to trace material manifestations of human existence, the 1990 Charter canonised the materiality of heritage. Confined within this material-centric framework, the UCH is hence defined as and reduced to tangible human traces in or removed from aquatic environment.

Rethinking maritime heritage with the middle passage

Our reflections are initially triggered by the two recent proposals relating to deep-sea mining, both of which justify themselves in the name of heritage and through a common reference to the 1982 LOSC. What our analysis shows hitherto is that despite its universalising language of being for the benefit of humanity as a whole, heritage-making in the fluid ocean as invoked and imagined by the LOSC, remains overwhelmingly land-, material- and nation-centred. Returning to and further engaging with Turner et al’.s proposal (Turner et al. 2020) to put memorial ribbons across the Atlantic Seabed on ISA maps, we propose taking the Middle Passage as an analytical provocation to invite further possibilities to reimagine and reinvigorate maritime heritage. As Mustakeem (2016, 5) contends, ‘[t]he Atlantic Ocean was more than just a space; it became an agent that imposed significant impact on people, further bridging the relationship of man and the sea’. To think provocatively with and through the Middle Passage entails efforts to recognise the mutually constitutive and constituting relationship between the Middle Passage and the three-dimensional, fluid (Atlantic) Ocean, and to explore how this particular engagement may enable the emergence of productive critiques and alternative perspectives on maritime heritage.

The Middle Passage commonly denotes the forced voyage of enslaved Africans across the Atlantic Ocean to the New World during the transatlantic slave trade. From around 1518 till the mid-nineteenth century, more than 12.5 million Africans were transported on one of the more than 30,000 voyages that lasted between 21 and 90 days (Eltis 2007; Eltis and Richardson 2015; Klein 2010; Lovejoy 2011; Rediker 2008). The sexes were segregated, stripped of clothing, and tightly packed into cargoes of 150 to 600 persons; male slaves were kept shackled to prevent mutiny, and at least 26% of those captive on board were categorised as children (Eltis 2007). The unsanitary environment on board guaranteed the widespread prevalence of illnesses and contagious pathogens. This coupled with malnutrition, torture, revolt, and bad weather meant that between 12 and 13% of Africans (about 1.8 million) did not survive the Middle Passage (Brown 2008; Eltis 2007). As detailed in Equiano’s autobiographical testimony cited at the outset of this article, the physical, emotional, and psychological abuse and pressures inflicted upon the embarked Africans were so unbearable that many committed suicide during the voyage (Mustakeem 2016; Snyder 2015). The Atlantic Ocean is therefore not merely a container of water body that enables the crossings of slavery ships but becomes the final witness to the countless tales of agony, suffering and struggle. As Sharpe (2016) reminds us, the residence time – the period for a substance that enters the ocean and leaves it – of human blood is 260 million years; the deaths of African captives during the Middle Passage are hence not a static history locked in the past but still with us, now and present, borne and remembered by the weighty Atlantic Ocean.

How do the parameters set by the LOSC and the mainstream heritage management regimes enable us to make sense of and approach this largest-forced migration of people in world history? The terrestrial-centric emphasis in heritage theory (Winter 2023) results in the prioritisation of heritagising land-based sites linked to the slave trade. An illustrative example is the UNESCO-listed Valongo Wharf Archaeological Site, the former harbour area of Rio de Janeiro that witnessed the landing of an estimated 900,000 enslaved Africans in South America (Lima 2020). Attention to maritime heritage associated with the slave trade, particularly slave shipwrecks, starts to pick up during the last decade. One of the most notable examples is the recovery by the Slave Wreck Project of the slave ship São José Paquete D’Africa near the waters off Cape Town, one of the first known shipwrecks with enslaved Africans on board to be identified, excavated, and conserved. It is estimated that around 1,000 ships participating in the transatlantic slave trade were wrecked (Turner et al. 2020); hence, there is potential for discovery of slave shipwrecks like the São José in the Area within the Atlantic basin. And, based on the LOSC, these shipwrecks could potentially be considered as ‘objects of an archaeological and historical nature’ (LOSC 1982) and hence part of the ‘common heritage of [hu]mankind’ as a whole.

This emphasis on shipwrecks when approaching slavery-related maritime heritage is understandable because slave shipwrecks remain the most tangible – despite being submerged – legacy from the Middle Passage, alongside the land-based slavery trading sites. It also reflects the continued prioritising of material-centric approaches to heritage and conservation that are dependent upon and powered by ‘an epistemological bias towards scientistic materialism’ (Winter 2013, 533). Based on the existing mainstream heritage management practices and the ISA draft exploitation regulations, should these shipwrecks be discovered during mining-related activities, a protected zone of a reasonable radius of the discovery could be established (Turner et al. 2020). This tendency to geographically delineate the site of a shipwreck in case of discovery, however, reveals terrestrial preoccupation with fixity and stability to the detriment of oceanic materialities and fluidities that constitute (the history of) slave shipwrecks and, more broadly, the Middle Passage. This prioritising of a fixed and bounded site of a shipwreck (but also land-based slave trading sites) is produced by and productive of a particular imagination of the Middle Passage, that is, a horizontal inter-enclave hopping from the departing port to the site of sunken ships on the seabed (in the event of shipwrecking) or to the final landing port. This spatially constricted, enclave-hopping imaginary of the Middle Passage is also facilitated by and facilitating the colonial-rooted, long-standing representation of ‘the ocean as aqua nullius, a space of transit in which the sea is barely present’ (DeLoughrey 2010a, 704).

However, much has been missed in this terrestrial-based and material-centric way of memorialising the Middle Passage that is underpinned by the cartographic logic of emplacing flat, fixed, and heritagised points. The experiences enslaved Africans endured and bore witness to during the transatlantic voyage (between the departure and the point of shipwrecking), their suicidal attempts to jump to deaths or being cast overboard by crews, their last struggles at sea for survival in the event of shipwrecking, or simply their final sinking into the deep sea are all left untold, unremembered, and not seen as ‘objects [italics emphasised] of archaeological and historical nature’ and hence not parts of the ‘common heritage of [hu]mankind’.

Also, the perpetual movement and dynamic fluidity of the ocean – the wet ontologies thereof à la Steinberg and Peters (2015) – disrupts the memorialisation attempt to designate a fixed and grounded slave shipwreck point. For instance, it is unlikely that the place – where the slave ship was wrecked, where it landed on the seabed, where it is discovered after centuries of exposure to water movement and geological forces, where it will be in the future as well as where the perished bodies initially rested – would be the same. Yet all these locations, connective and connecting, together constitute and become the constant movement and flow of the Middle Passage across spatial and temporal scales that cannot be merely reduced into a single or a set of territorialised, isolated, and heritagised point(s) in the seascape.

Put differently, rethinking the Middle Passage in all its complexities as river-like, continuous, and complex fluxes of peoples, experiences, and ideas – which cover and saturate the horizontal and vertical, and the surface and the volumetric scales of this oceanic passage – animates the reimagining of ocean-based heritage. It also disrupts and blurs the facile cuts and distinctions between the maritime and marine dimensions of heritage in aquatic environment. Spatially, this rethinking helps suspend, question, and transcend the earthly striations and territorial gridding violently imposed by the LOSC to separate water column from the seabed, and the Area from the non-Area. Temporally, it merges the transatlantic past and the lost subjects therein with the present and the future, weaving an informing intimacy that exposes the potential reproduction of the violence of Atlantic modernity (DeLoughrey 2010a; Gilroy 2003; Thiaw and Mack 2020; Wagner 2015) in the new ocean frontier – the constructed oceanless seabed.

Conclusion

Heritage becomes one of the crucial and central terms underpinning the global legal project of ocean-ordering. The making of the LOSC represents the most important contemporary moment to legally define, stabilise and naturalise human’s understanding of and relationship with the ocean. This process was initially triggered by Pardo’s proposal to render the deep seabed as the CHH. But, as our analysis shows, it was also predicated on and enabled by the more deep-seated metaphysical and geographical tendency to parcelise the ocean, which is itself rooted in and powered by a human-dominated imaginary of the ocean as resource. We do not aim to diminish the commendable emphasis on redistributive justice in the CHH concept, a dimension unfortunately watered down throughout the codification process of the LOSC. However, as a result of the dominant resource-centric framing of the ocean, the rendering of the deep seabed as a heritage for all of humankind becomes essentially about the prioritisation and valorisation of the material and economic value of this now artificially delineated oceanless area.

Article 149 and Article 303 of the LOSC and the subsequent UCH Convention seek to establish a heritage regime in aquatic environment. However, these efforts only intensified and solidified the striation and territorialisation of the ocean. The construction of maritime heritage by the LOSC and the UCH Convention are premised on the one hand upon the dichotomy between jurisdiction and non-jurisdictional control, and on the other upon the AHD that is innately entangled with the discourse of nationhood and nationalism. The narrow material-centric conceptualisation of heritage in the ocean – embodied in the LOSC as ‘archaeological and historical objects’ – also meshes well with and further rationalises and consolidates the metaphysical, geographical, and legal project of parcelising the ocean.

Our attempt to take the Middle Passage as an analytical provocation to reimagine heritage-making in the ocean implies perceiving the ocean not just as where human activities transpire as they do on land. Acknowledging that the Middle Passage and the Atlantic Ocean are – across temporal and spatial scales – mutually constitutive and constituting contributes to the unsettling and problematisation of the land-based, material-centric, and nation-bounded way of heritage-making in oceanic environment. Our positionality hence echoes with what Chandler and Pugh (2023, 3) term ‘the abyssal paradigm’, which through an engagement with the Caribbean and Caribbean thought ‘holds off the lure of the world, as constituted by a modern ontology of fixed entities transparently available’. It helps problematise and reconfigure modernist divides between subject/object, land/ocean, material/immaterial, and human/nature that continue to overshadow the production of heritage knowledge, theory, and practice. To take the Atlantic Ocean as an analytical provocation does not preclude but aspires to kindle efforts to further reflect how heritage-making in other oceans should also delve into the question of how ocean materiality and agentivity constitute and condition the specific political, social, and cultural history of these oceanic environments. On a final note, informed by this abyssal sensitivity and thinking with, through and from the Middle Passage, we also suggest taking Turner et al’.s practical proposal (Turner et al. 2020, 4) to ‘extend a virtual memorial ribbon, or multiple ribbons, across the Atlantic seabed on all ISA maps of the region’ a step forward. Rather than simply placing flat memorial ribbons, this cartographical exercise should, at least, include a vertical dimension – potentially marked by mnemonic symbols and icons indicating and indexing multiple cultural heritages therein – that acknowledges and demonstrates the depth, weight, and agency of this ribbon-covered heavy water body.

Acknowledgement

We would like to thank Yuan Wei, Edyta Roszko, Lucas Watt, Shengdan Cai, and Tirza Meyer for their valuable support and helpful feedback at various stages of this research. We are equally grateful to the anonymous reviewers and the journal editors for helping us clarifying our arguments. Last but not least, our writing is also indebted (and hopefully dedicated) to the late Professor Oscar Salemink, who generously spent time on sharing his thoughts with us even at the very last stage of his life.

Disclosure statement

No potential conflict of interest was reported by the author(s).

Additional information

Funding

Zhou’s research and writing of this article was supported by the European Research Council [ERC Starting Grant: No. 802223]. Xie’s research and writing of this article recieved no specific grant.

Notes on contributors

Hang Zhou

Hang Zhou is a political ethnographer interested in South-South relations, global China, politics of development, maritime anthropology, and everyday states in Africa. His PhD thesis finished at SOAS, University of London, was shortlisted for the 2022 Audrey Richards Best Doctoral Thesis Prize of the UK African Studies Association. His recent works have appeared in African Affairs, Marine Policy, Revue internationals des études du développement, and African Study Monographs, among others.

Jieyi Xie

Jieyi Xie is an assistant professor at the Department of Sociology, Hong Kong Shue Yan University. Her research focuses on heritage and museum studies, with a particular interest in world heritage politics and the Maritime Silk Road heritage. Email: [email protected].

Notes

1. While both the Maltese Ambassador Arvid Pardo and the LOSC refer to ‘common of mankind’, we prefer using the term ‘common heritage of [hu]mankind’ in this article to avoid reproducing the masculine connotations implied in the wording of ‘mankind’.

2. Most of Pardo’s own or cited predictions throughout the speech were thereafter proven to be overly optimistic or simply unsubstantiated. The cost effectiveness of DSM and the estimated seabed mineral bonanza were both questioned (Ranganathan 2016, 712). The polymetallic nodules are unlikely to form at a rate faster than their consumption given that their formation rates ‘are amongst the slowest geological processes on earth’, about 1 inch per million years (Childs 2022, 193–95). The prospect for permanent human inhabitation in the deep seabed seems to be, if anything, still far-fetched six decades after his speech.

3. See ‘Archaeological and Historical Treasures of the Sea-bed and the Ocean Floor Beyond the Limits of National Jurisdiction’ submitted by Greece to the UN General Assembly’ in August 1972 and ‘Turkey: draft article under point 23. archaeological and historical treasures on the sea-bed and ocean floor beyond the limits of national jurisdiction’ submitted by Turkey to the UN General Assembly in March 1973.

4. The proposal submitted by Greece in 1972 suggests that ‘if the International Authority will not undertake itself exploitation activities of the resources of the sea-bed area, all persons, natural or juridical, public or private, national or international, exploiting the area by a system of contracts or by the establishment of joint adventures, are to be obliged to report to the Authority the discovery of any item of archaeological or historical value’ (See, UN General Assembly, Committee on the Peaceful Uses of the Sea-Bed and the Ocean Floor Beyond the Limits of National Jurisdiction, Sub-Committee 1, UN Docs A/AC.138/SC.I/L.16, 2 August 1972).