1. THE GOVERNANCE CHALLENGES OF GLOBAL UNDERWATER CULTURAL HERITAGE PROTECTION
The United Nations Educational, Scientific and Cultural Organization (UNESCO) 2001 Convention on the Protection of the Underwater Cultural Heritage (UCH Convention)Footnote 1 firmly placed on the international agenda the protection of underwater cultural heritage (UCH), such as submerged shipwrecks, landscapes, monuments, artefacts, and human remains. Previous efforts to ensure international protection of UCH were largely curtailed or dwarfed by larger political issues surrounding the governance of the oceans. For example, it is clear that the protection and preservation of UCH was merely an afterthought during negotiations over the UN 1982 Convention on the Law of the Sea (UNCLOS),Footnote 2 resulting in only a handful of weak and ambiguous clauses relating to undefined ‘objects of an archaeological and historical nature’.Footnote 3 In fact, the 2001 UCH Convention has proved to be effective in propelling UCH into the international consciousness and in securing common rules and archaeological best practices in its global management.Footnote 4 However, despite several promising signs of progress, concerns remain about the quality of state compliance with their duties to protect UCH under both the UCH Convention and UNCLOS.Footnote 5 This is not forgetting the many crucial states which have been slow or have refused to ratify the UCH Convention, or the reports of looting, substandard archaeology, commercial salvage, and sometimes poor management of shipwrecks – both historical and modern – around the world.Footnote 6
It is hence necessary to seek solutions to protect UCH which do not rely exclusively on the nation state, but which complement the existing interstate legal framework. Indeed, as a low-political concern with value that benefits distant and future communities, it is difficult to incentivize nation states – otherwise distracted by hundreds of more pressing social, economic, and environmental concerns – to allocate time and resources to the protection of a niche resource such as UCH.Footnote 7 It is thus important to run the gamut of options available within and outside the state, by looking to transnational modes of governance to enhance the protection of UCH or to assist in the eventual coercion or incentivization of states towards more effective regimes of protection. As this article examines, one of the most important mechanisms to deliver more effective protection has been community governance; here understood as an increased governance by stakeholders and private actors operating at the local or at the transnational level. The focus of this article is to critically examine the capacity of all manner of private or hybrid agents – outside the administrative arms and public authorities of the state – to be utilized effectively as direct protectors of cultural and natural heritage in the governance mix, operating in partnership with public authorities. It highlights numerous examples of private actors and local communities being especially effective in the protection of UCH, and evidences the different mechanisms which can be utilized by public regulators to harness this power of the community.
The article proceeds, firstly, by examining the theory, advantages, and impact of community-oriented governance in detail. It explores how ‘collaborative governance’ or ‘new governance’, as it has sometimes been known, operates as a third regulatory mechanism which can be inputted when command-and-control or market-based mechanisms are unavailable, as is all too often the case with global public goods. It then examines the role of ‘meta-regulation’ or ‘co-regulation’, where state resources and traditional legal structures can be used to stimulate, facilitate, or augment the role of non-state actors in achieving effective systems of multi-stakeholder governance. The second half then compiles many examples of the local community being a highly effective and necessary force in achieving better systems of global UCH protection than that afforded by national law and order alone. Drawing upon the theory, it proceeds to examine these numerous examples, highlighting various meta-governance policies to expand community engagement, including (i) community buy-in; (ii) community incentivization, such as commercial opportunity; and (iii) collaborative governance. Overall, this study affirms the growing future role and function of local and transnational communities in the global protection of UCH.
2. COMMUNITIES IN ENVIRONMENTAL GOVERNANCE
2.1. Overcoming the Limits of Top-Down and Market-Based Regulation
There has been a surge in demand for a greater regulatory role to be played by communities – whether such communities are local/transnational, homogenous/heterogeneous, private/public/hybrid – to deliver a more effective and integrated system of environmental and cultural heritage protection. Work in this area typically expands upon the research of Nobel prize-winning economist Elinor Ostrom, published in 1990, which was widely regarded as groundbreaking evidence of the capacity of communities to manage their own resources independently in an effective and sustainable way.Footnote 8 Breaking with the pessimistic depiction of humankind as consisting of self-interested decision makers, as was central to Garrett Hardin's famous 1968 hypothesis in ‘The Tragedy of the Commons’,Footnote 9 Ostrom's work showed that even rationally oriented communities, which possess a number of qualities that enable self-governance, can self-organize the governance of commons more effectively than is possible by top-down regulation alone.Footnote 10 The recognized capacity of communities to reflexively manage numerous competing, overlapping, and shifting stakeholder interests has thus propelled the use of new governance forms, such as ‘collaborative’Footnote 11 or ‘new’Footnote 12 governance, as a new regulatory mechanism to achieve public objectives beyond the limitations of command-and-control, market-based, and various other regulatory approaches.Footnote 13
Command-and-control regulation, as the traditional ‘go-to’ form of legal enforcement, can often be shaped as a top-down manner of regulation. While command-and-control regulation is perfectly capable of being responsive and reflexive to stakeholder preferences, such as by consultation and democratic processes, the legislative lag time and the burden of intensive consultation processes driven by central regulators can often lead to ineffective ‘top-down’ law.Footnote 14 The slowness of this top-down regulation, therefore, to adapt to the shifting and context-dependent patterns of stakeholder interaction and decision making can impede the development of clear and predictable environmental rules which stakeholders can follow and understand.Footnote 15 The delays or misunderstandings which can also occur through the formal procedures and vertical communication channels of top-down law can also encourage the use of generalized principle-based rules, which can suffer from ambiguity and, thus, challenges in securing compliance.Footnote 16 This compounds the problems of enforcement, given the considerable challenges and costs of detecting infractions and compiling sufficient evidence to punish rule breakers fairly and effectively, leading to a more costly system if it is to effectively detect breaches and distribute fair and accurate punishments.Footnote 17 Indeed, most domestic legal systems are limited in terms of the resources and processes they have available for implementation and enforcement. When top-down command-and-control regulation is designed within poor policy development systems which fail to respond swiftly or accurately enough to diverse and reflexive community needs, it can also suffer from lack of community buy-in and social legitimacy.Footnote 18 In practice, this means that rules can be flouted or disregarded, as has been demonstrated quite frequently in the paradigmatically transnational marine environment.Footnote 19
A second key regulatory approach to address public goods production, assisted into the mainstream by the Chicago School of Economics in the mid-20th century, is by market-based mechanisms.Footnote 20 The capacity and efficiency of markets to swiftly modify behaviour and to achieve allocation of resources to near-Pareto preferences is phenomenal.Footnote 21 Unfortunately, however, market-based models are effective only in specific factual contexts. In particular, any good which radiates intangible and non-economic values that overspill to non-owners is likely to be systematically underproduced on account of its perpetual undervaluation.Footnote 22 Furthermore, the need for public enjoyment of public goods – such as sustainable recreation, in situ research, aesthetic enjoyment, and access to and benefit sharing of UCH – makes exclusive private dominion an unattractive model of management.Footnote 23 However, it is certainly feasible that modified rules of ownership which maintain public access, perhaps being run by local or transnational communities, can carry the capacity to effectively propertize UCH in a manner that permits public enjoyment (see Section 3.2 below).
Governance research since the late 20th century has increasingly pointed to community governance as an effective third option to resolve situations when the first two strategies are ineffective. Given that top-down command-and-control regulation and market-based regulation can present challenges in the heterogeneous, reflexive and contextual world of global environmental protection, it is now community governance – or ‘collaborative’Footnote 24 or ‘new’Footnote 25 governance – which has emerged as a response to pressing environmental concerns such as climate change or, indeed, the protection of UCH.
2.2. Community Governance as the ‘Third’ Regulatory Mechanism
Within global governance research, community governance has been variously referred to as ‘local’, ‘subnational’, or ‘stakeholder’ governance across diverse literatures, all with slightly different emphases. However, ‘community’ is the preferred term in this context, as it includes self-governing communities that are not strictly ‘local’ (geographically distinct or homogenous) and communities other than those represented by subnational entities, such as councils or local government.Footnote 26 Self-governing communities can indeed come in a vast variety of forms. It is possible to view a maritime economic sector, such as the fisheries or energy sectors, as a community, just as it is possible to consider polycentric transnational networks of public and private actors across multiple sectors, cooperating in the management of the same micro-regional sea basin, as a community, albeit of a transnational and multi-level variety. Communities can be global, regional, national, or local in spatial reach, and can range from homogenous to heterogeneous in composition. In many ways, community governance is similar to ‘network governance’, wherein transnational communities represent issue-linked regulatory networks.Footnote 27 Community governance can stretch across global, regional, and national scales, but it demands attention to the everyday interactions of actual persons, organizations, and stakeholders. As such, it is complementary to and continues the development towards effective multi-level and global environmental governance.
Over the past few decades, numerous case studies have confirmed that enforcement mechanisms internal to communities, such as reputational pressures or the threat of ostracism, can drive up compliance with regulatory norms.Footnote 28 Further, their capacity for creative use of resources and self-organization makes communities capable of devising unique internal enforcement mechanisms. An illustrative example is the capacity of online social networks to develop new mechanisms for achieving public objectives, such as by suspending user accounts, modifying search rankings, or adopting ratings systems.Footnote 29 Communities are thus inherently creative in their use of resources and in their capacity to problem-solve efficiently. Through its capacity for more frequent and detailed interaction between members, community regulation is also inherently more suited to developing rules and systems to overcome collective action weaknesses.Footnote 30 It therefore becomes possible to empower stakeholders and provide a self-repeating pattern of cognizance of legal norms and compliance. This adaptability also makes regulation more responsive to the constant and dynamic changes in the regulatory environment.
Further, by necessarily having a role in the day-to-day management or utilization of a resource, by virtue of being local residents, consumers or producers, communities make suitable monitors, reporters, and enforcers against rule breaking and free riding.Footnote 31 By permitting community members to represent their interests and to seek optimum allocation of preferences, stakeholder-led governance can also enjoy a higher level of community buy-in and a sense of social legitimacy.Footnote 32 This can improve compliance at the critical stakeholder level.Footnote 33 What is more, if private communities can be trusted to self-craft rules, transaction costs can be minimized and rules can be designed in a manner that is easier to implement, as well as suited to the individual interests of community members, and in a familiar format which is easier to understand.Footnote 34
Achieving community buy-in is essential to achieve all forms of natural and cultural heritage protection. The resources, tools, daily engagement, and close proximity of local communities makes them truly invaluable as ‘partners’ in the protection of our global heritage.Footnote 35 In the context of archaeological resources, examples continuously arise of more effective heritage management through collaboration with local communities.Footnote 36 By its capacity to make integrated use of traditional practices, knowledge, and innovation, such public-private integration also has numerous social benefits and puts a much greater value on cultural and indigenous diversity. While stakeholder-led governance can take more time and effort to reach agreed rules, the resulting quality of the norms and the high level of community buy-in make the overall implementation far more time-efficient and more effective overall.Footnote 37
We therefore see a growing volume of research dedicated to resolving these necessary governance challenges, with subjects ranging from collaborative governance,Footnote 38 new governance,Footnote 39 smart regulation,Footnote 40 network governance,Footnote 41 co-management,Footnote 42 co-regulation,Footnote 43 polycentric governance,Footnote 44 public-private partnerships,Footnote 45 participatory governance,Footnote 46 to reflexive governance.Footnote 47 While each of these fields promotes the value of community-oriented governance, they also emphasize that such approaches become most necessary when addressing externalities or the weaknesses of traditional modes of regulation. Naturally, reliance upon communities to self-govern is not a panacea for global environmental governance. Indeed, many studies across these fields have also highlighted the practical challenges and inherent risks. For example, the high level of unpredictability and shifting contexts creates a considerable demand for constant adjustment and may render such governance prone to deadlock, stakeholder fatigue, motivational weakness, power imbalances, community unpreparedness, harmful path dependency, intra- and inter-community conflict, and the need for a leader or policy ‘champion’. It is therefore increasingly suggested that these collective negotiation processes need some form of higher-level coordination, perhaps by trained collaborative facilitators and mediators.Footnote 48
A community-level approach to environmental governance would support the principle of subsidiarity being applied to its furthest extent. The ‘lower’ levels of governance – stakeholders and communities themselves, whether represented as towns, villages, councils, groups, associations, companies, or even economic and social sectors – should be viewed as the first choice of governors, except in those areas where ‘higher’-level regulation is needed.Footnote 49 This resonates with the increasing importance attached to transparency and participatory rights in environmental planning and decision making.Footnote 50 Subsidiarity-based reasoning also provides stakeholders with ammunition to enforce their environmental interests in multi-level public or private regulatory regimes.Footnote 51 What is more, it improves the collective knowledge of negotiating stakeholders, thus facilitating accurate preference setting and improving the coordination of skills, innovation, effort, and resources.
2.3. Community Governance and Meta-Regulation
At the heart of the social inclusivity requirement is the foremost realization that public actors alone are not capable of producing global public goods by themselves. The forces of externalization, privatization, and innovation increasingly propel private actors into the role of global public goods providers, particularly in the transboundary environment. Indeed, a familiar challenge in the achievement of global public goods output – such as the global protection of UCH – is the shrinking of government budgets around the world.Footnote 52 Private actors increasingly fill the void left by governments which are no longer able to justify the allocation of tax revenue from present-day national citizens.Footnote 53
Top-down regulation can, however, still be utilized to varying degrees in order to (i) provide the rules for community cooperation; (ii) facilitate stakeholder negotiations; (iii) allocate suitable resources; (iv) resolve intractable disputes; (v) prevent externalization of harm by communities; and (vi) keep communities on track towards the production of public goods.Footnote 54 In doing so, public authorities act as facilitators or coordinators of public-private effort, by enabling communities to self-govern or co-govern towards the achievement of wider public objectives, utilising what is known as meta-regulation. The purpose of meta-regulation by public authorities is thus to create an environment in which stakeholders can determine independently those areas where further intra- or inter-community cooperation, coordination, and collaboration – what Brown and Keast have referred to as the ‘3Cs’ – could achieve more effective and sustainable results than traditional top-down regulation.Footnote 55 Co-managed communities range from those that are almost entirely autonomous and free to self-regulate, to those communities that are still steered primarily by detailed public regulation.Footnote 56 Communities may even be entrusted largely to design their own regulatory systems from the bottom-up, effectively utilizing state-based regulatory tools and market-based models in the process. However, as explored in Section 3, it is unlikely that, in the absence of a facilitative infrastructure supplied by a supporting legal framework, co-managed communities can be as effective in addressing environmental objectives.
Such co-managed communities can be found across the globe, such as in the context of co-regulation of internet intermediaries in cyberspace,Footnote 57 or in the fallback provisions regarding public oversight of international commercial arbitration under the UN 1958 New York Convention on the Recognition and Enforcement of Arbitral Awards.Footnote 58 By the same token, they can be found in local contexts, such as in the adaptive co-management of ecologically variable marine-protected areas or fishing zones,Footnote 59 or the co-governed community management of common spaces or resources.Footnote 60 We increasingly find efficient co-management arrangements between states and private actors in public-private partnerships.Footnote 61 Such partnerships might involve the regulatory input or consultation of private standards bodies, or their contribution towards enforcement, and may extend to full-scale multi-actor regimes, incorporating objectives and rules which have been defined by a combination of public and private actors.Footnote 62
In order to effectively stimulate communities to engage with and provide public goods for the international community, it is therefore important for meta-regulators to think about community incentivization, motivation, and compensation. Indeed, if the benefits of protecting a resource will spill over to the wider global community or to future generations, then the community is likely to need additional incentives to address the unevenness in cost-benefit distribution.Footnote 63 For example, a market-based strategy that enables communities to more effectively propertize a local resource has been a key motivation to secure and maintain World Heritage status so as to attract global tourism, in turn providing a strong financial incentive for communities to protect and preserve their local heritage.Footnote 64 Bederman provides the example of the different approaches in Kenya and Zimbabwe to protect African elephants from poaching. The introduction of community ownership over local elephant herds by the Zimbabwean government delivered much better results when compared with the approach in Kenya, which focused on stricter economic and behavioural sanctions from the top down.Footnote 65
Community incentives can go beyond financial reward and also engage with psychological and socio-cultural motivations.Footnote 66 Creative examples of payments for ‘environmental services’ are found increasingly in a number of contexts.Footnote 67 In some cases general awareness raising and education about the external value of local resources might improve a sense of community guardianship, although a moral sense of value alone is unlikely to be sufficient motivation and might even increase the risk of looting and free riding by the community.Footnote 68 A good example of such strategies backfiring in the UCH context is found in the discussion by Harvey and Shefi of the Clarence shipwreck in Australia: the placement of a protected zone around the site with a marking post simply ‘drew the attention of the public’ and was used by recreational fishers and divers as an anchoring marker.Footnote 69
In other cases the incentive for communities to engage with public objectives may be more obvious. For example, a fishing community will understand that, without cooperation and a community ethic, a tragedy of the commons can produce a lose-lose situation for all users of a shared ecosystem.Footnote 70 Beyond prospects for a rise in tourism or fiscal incentives, motivations could also include the provision of resources and opportunities for development, such as capacity building, exchange programmes, or research twinning – all of which are visible elements in the UCH Convention.Footnote 71 Hence, communities can be highly effective regulatory tools, provided they are suitably supported, empowered, and motivated.
3. COMMUNITIES IN UNDERWATER CULTURAL HERITAGE PROTECTION
Having explored the vital function of communities in the transnational protection of cultural and environmental resources, this study now draws together numerous examples of communities which have been – or could become – effective in driving up the quality of protection of UCH. It examines three different meta-governance principles which are seemingly utilized in order to engage communities with the local protection of a global concern, namely (i) community buy-in; (ii) community incentivization; and (iii) collaborative governance.
3.1. Community Buy-In
The most prominent means of achieving effective community governance in the protection of UCH has been the enhancement of community ‘buy-in’ regarding the values and benefits of protection. A critical issue of the valuation of heritage is that the loss of much of its abstract, intangible and non-economic value is an externality, experienced outside the communities or national governments implicated with its protection and preservation. The concept of community buy-in therefore focuses on educating the community and building a sense of pride or ownership in the heritage of its members, regarding which they have an inclination towards stewardship. Community buy-in thus increases the overall share that the community receives of the abstract value of the heritage, such as archaeological, educational, historical, social, empathy, and cultural value; thus having an impact on community motivation and an incentive to ensure its protection. As De La Torre and Mason stated, it ‘is self-evident that no society makes an effort to conserve what it does not value’.Footnote 72 Similarly, as Ulrike Guérin, Head of the UNESCO Secretariat for UCH Protection, says of engaging communities with UCH protection: ‘If you ask for something from them, then you have to say why’.Footnote 73
Examples abound of instances where community buy-in has been effective in protecting UCH. For UNESCO and similar international initiatives concerned with UCH, the education of communities is an affordable, politically sensitive and more long-term solution for community empowerment and resilience, eventually leading to effective self-governance in the protection of UCH.Footnote 74 A good example of this community engagement is provided by Pilar Luna in relation to the large number of shipwrecks found in the Sound of Campeche (Mexico). Given the weakness of traditional top-down regulation, more effective protection of these multiple heritage sites was achieved only by intensive community engagement, education and collaboration, along with the inclusion of local divers, fisheries, maritime sectors, coastal communities, academic institutions, international and non-governmental organizations (NGOs) to report findings and suspicious behaviour, as well as to collaborate in the recovery of threatened artefacts.Footnote 75
The impact of local valuation of heritage was aptly demonstrated in 2017 by Jeffery and Palmer, who noted the difference in protection of nearby UCH across different Pacific Islands, which varied ‘for a number of socio-historical-political reasons’.Footnote 76 Tellingly, they point out that the Republic of Palau ‘places significant value on the many Japanese World War II sites in its waters’, which has led to firm reprimands for looters and free riders. In contrast, the State of Chuuk in the Federated States of Micronesia ‘appears to place little historical value on their Chuuk Lagoon World War II shipwrecks’, resulting in poor protection and looting.Footnote 77 The Clarence schooner in Australia, referred to earlier, provides another illustrative case, akin to the example of Bederman's Zimbabwean elephants. Despite providing enforcement officers with the capacity to enforce on-the-spot fines and ramping up the value of the fines, ‘the threat to Clarence was not significantly reduced’.Footnote 78 More effective protection was achieved only once the local community was brought in, educated about the wreck's importance, and partnered in its long-term stewardship.Footnote 79
Another common means to effectively achieve community buy-in is the conversion of marine and coastal communities into amateur archaeologists. By giving them archaeological mindsets and methods, communities are not only capable of unlocking many of UCH's dormant recreational, social, historical, educational, excitement, and empathy values, but are also more likely to prefer to protect and preserve it as an archaeological resource, rather than merely as an economic or aesthetic resource.Footnote 80 Examples of such approaches being used effectively include the success of the South Carolina Sport Diver Archaeology Management Program;Footnote 81 the Submerged Sites Education and Archaeological Stewardship programme in Florida;Footnote 82 and Historic England's strategy of encouraging archaeological training of divers through the Nautical Archaeology Society (NAS).Footnote 83 Bernier discusses the case of the Elizabeth and Mary wreck in Baie-Trinité (Canada), where local sports divers who regularly visited the threatened site were given archaeological training through the NAS.Footnote 84 The core benefit of such archaeological training programmes, as Scott-Ireton puts it, is that they enable ‘divers to produce information, rather than just consume information’.Footnote 85 It is also worth acknowledging that coastal and marine communities outside the diving community can be equally utilized, such as the CITiZAN programme in England, or the SCAPE programme in Scotland, whose work focuses on building interest and engagement in coastal archaeology among coastal communities.Footnote 86
In addition to community education about the value of UCH and the provision of archaeological cooperation and training, community buy-in can be achieved by rousing a stronger sense of ownership over UCH. For example, Gribble writes that improvement in the protection of pre-colonial fish traps on the South Western Cape Coast of Africa is being achieved ‘by increasing public awareness of the traps, and by encouraging local coastal communities to understand their significance and importance and to take ownership of “their” traps’.Footnote 87 Burgin, too, highlights efforts to turn thousands of divers in the Great Lakes ‘from stakeholders [in]to shareholders’.Footnote 88 Scott-Ireton, in turn, reports how the attitude of nearby coastal and marine communities towards the Urca de Lima wreck changed once the site was formally designated as a preserve and placed ‘in the public's trust’.Footnote 89
As Leshikar-Denton stated when discussing UCH protection in the Cayman Islands, ‘knowledge inspires appreciation among the public for cultural heritage sites, and results in [the] enlistment of allies in the guardianship of these irreplaceable resources’.Footnote 90 Similarly, Drew points out that because local World War II shipwrecks are regarded as national treasures in the Solomon Islands, it means that local residents provide the protection ‘as de facto custodians of the wreck sites’, even without a formal shipwreck management programme.Footnote 91 Considerable efforts to include local community buy-in through building a sense of ownership have also paid off across Europe. For example, following on from the early efforts of the NAS ‘Adopt-a-Wreck’ scheme, the Maritime Archaeology Trust, working with Historic England, has recently made efforts to develop a new scheme for ‘heritage partnership agreements’ (HPA) between local communities and heritage agencies working in collaboration over specific sites.Footnote 92 As its Final Report states,
It appears fundamental to the success of any HPA programme that people want to conduct work on the sites concerned because they have a personal, shared or community interest in them. This to an extent revolves around the creation of a sense of ownership of such heritage assets.Footnote 93
Obviously, however, community buy-in is not a panacea for heritage protection. The first great limitation is that not all members of a community are likely to share the same enthusiasm for the archaeological, educational, historical, social, excitement and empathy values produced by their local UCH. Some members of the community – no matter how much education or training they receive – will continue to enjoy UCH for its tangible value or, worse, may receive greater excitement or economic value from its illicit interference or recovery.Footnote 94 Pilar Luna writes that ‘minor looting’ still takes place at the Sound of Campeche, which she attributes to ‘the lack of consciousness of some sport divers and fishermen who are not aware of the importance and cultural value of this legacy’.Footnote 95 In reality, however, it is likely that these members of the community are less interested in the intangible or heritage qualities of UCH and, perhaps understandably given their socio-economic situation, more in its more tangible and economic values. Individuals cannot escape the same rational incentivization biases, or lethargic constructivist conscience patterns, that beset nation states and cause poor international compliance in the protection of global public goods.Footnote 96
The other great difficulty relates, once more, to externalities caused by the multiple value nature of UCH. While educating the community or enhancing its sense of buy-in with local heritage could increase the ‘share’ of value the community receives from that heritage, in many cases the total value enjoyed by coastal or maritime communities will be less than the value that UCH represents to external communities and future generations. Understandably, any difference in cost-benefit distribution may cause members of the local community to prioritize short-term gains for themselves or the community over the long-term interests of those outside the community. As Maarleveld notes, the difficulty with local governance is that coastal communities are equally, if not more, disengaged from distant valuations of local heritage.Footnote 97 He adds that ‘even in a municipality at the sea coast, it's not the sea beyond the horizon that is important, but the traffic lights in the centre of the city’.Footnote 98 Nevertheless, education and local community buy-in can considerably narrow or even close the gap between the costs and benefits of protecting heritage, which could only improve this situation and is unlikely to harm.
3.2. Community Incentivization
A community's recognition of the importance of UCH is essential but, in several cases, will not be sufficient by itself. If too much value of UCH protection is delivered to external communities, there is then a routine risk of shortfall in the cost-benefit calculation for local communities when considering how much effort to invest in its guardianship. This risk of discrepancy or distortion in valuation raises the question of how communities can be better incentivized to protect UCH. As Jeffery and Palmer say, ‘effective management of a large number of shipwrecks is a daunting and expensive task for any country … In this context it is of prime importance to [make such management] beneficial to local people’.Footnote 99 For example, one empirical study found that avocational divers, ‘with their passion, skills, and sometimes access to equipment – can be invaluable partners’ in discovering and studying UCH.Footnote 100 However:
[T]hey have other responsibilities, paying jobs, and limited time. And they are more likely to choose, during their valuable leisure time, the most exciting activities (e.g., diving vs. tedious data entry) and the most exciting wrecks. They cannot be ‘dumped on’ or simply ‘used’. Government partners must also bring something to the partnership table, even if in non-traditional forms.Footnote 101
The study further suggested that, while content to engage in public initiatives relating to UCH, recreational divers expected some form of incentivization for discovering, assessing, or protecting UCH. Incentives proposed by interviewees included tax breaks, provision of support facilities, formal recognition (including attribution or publicity), preservation of intellectual property rights, and other financial incentives such as launch and dockage fee waivers.Footnote 102
The 2015 study by the Maritime Archaeology Trust into Heritage Partnership Agreements came to similar conclusions, saying that the ‘main reason for the lack of sign-ups, based on the feedback from groups involved, was twofold and revolved around the selection of sites, and the incentivization of work’.Footnote 103 Many drew comparisons with the Environmental Stewardship scheme of Natural England, which offers financial rewards for participants.Footnote 104 Indeed, meaningful incentives are arguably more commonplace in the environmental context. Community incentivization schemes could therefore perhaps take the form of ‘cultural services’ – the cultural heritage equivalent of environmental services.Footnote 105 Through the creative design of co-regulatory solutions, regulators – whether operating at the local, national, or regional scale – could provide some additional value or compensation for the community to address the shortfall in incentivization.
Perhaps the most prevalent example of community incentivization is the widespread use in most national legal systems of reporting incentives, which encourage communities (or reprimand them for failing) to report new UCH discoveries.Footnote 106 In many ways this incentivization resembles a form of meta-governance. Such incentivization need not be limited to ‘local’ communities. Although design and implementation could pose initial challenges, a detailed system which incentivizes fishing communities or certain maritime sectors – such as shipping, salvage, construction, mining, renewables, and shipbroker industries – to take a proactive approach to site reporting, monitoring, and enforcement, or report suspicious activities or engage in whistleblowing, could be an effective meta-governance policy.Footnote 107
Instead of the appreciation of cultural services, arguably the most dominant form of community incentivization towards the protection of UCH so far is via conveying ownership. In contrast to the spirit of community ownership discussed above, this strategy involves the use of formal and legal rules to provide some degree of legal ownership over in situ or ex situ UCH. This may be ownership of the UCH site itself, of the land or sea area where it is found, or of the means of accessing it. We recall that propertization, as a model of management for heritage has certain weaknesses, given the nature of UCH as a public good, which is characteristically prone to undervaluation and underproduction. However, not all forms of legal ownership necessitate exclusive dominion and the exclusion of the public interest, and property laws are entirely capable of being modified to prevent externalities if private owners must hold goods effectively in the public domain. A good example is the world-famous collection of Titanic artefacts assembled by RMST Inc. throughout several expeditions in the late 20th century. Following guidance from the National Oceanic and Atmospheric Administration (NOAA), the United States (US) District Court of the Eastern District of East Virginia awarded rights of exclusive ownership and commercialization of the collection to its salvors. However, these rights were significantly restricted by a detailed system of conditions and covenants in a trust-like arrangement, which effectively ensured that the entire collection is permanently conserved, kept together and, most importantly, fully accessible to the public.Footnote 108
Thus, if local, coastal or maritime communities can legally control and monitor access to and the benefits of UCH, then carefully designed co-regulation could enable them to monetize this access in a manner that financially incentivizes them to ensure long-term protection of the site for the public benefit.Footnote 109 There is no reason why such ownership rights could not be held privately by individuals, rather than by communities or organizations, provided that the former are properly regulated to ensure that any heritage is maintained and monetized exclusively for public enjoyment. Perhaps the best example of this has been the licensing of local dive clubs which are awarded exclusive legal rights over access to UCH sites on the condition that they protect them and maintain them for public access. A recent UNESCO Report stressed the potential benefits of this approach, referring particularly to a recent trial run in Croatia.Footnote 110
Provided it is backed with well-crafted and effective meta-regulation, this solution seems to have few disadvantages. For example, laying a plaque in thanks to the local fishing community for its discovery and report of the site of the Lady Darling wreck in Australia gave the community a greater sense of ownership, which arguably enhanced the level of protection for the site. However, the most significant factor was likely to be the system of diving permits which local dive companies would purchase from the government.Footnote 111 Viduka provides another example of an effective ‘user pays’ system at the popular Yongala wreck site, where dive companies apply for permits that allow them to maintain an ongoing diving business, while ensuring that they are subject to conditions and rules to promote the protection of sites.Footnote 112 This led to the dive companies reporting all criminal activities or interference – even by their own customers!Footnote 113
Incentive systems would still need to be bolstered by an expanded sense of community value, as explored earlier. For example, although a significant income is delivered for the local community at the Chuuk Lagoon by imposing an ‘innovative’ dive fee through permits and local guides,Footnote 114 many Chuukese still lack a ‘personal connection or an emotional attachment’ to the site, leading to a lack of vigour in its protection.Footnote 115 Similarly, in her study of UCH in the Dominican Republic, Barbash-Riley notes the difficulties of protecting a ‘resource that involves a multitude of local, national, and global stakeholders with limited human and financial resources and technical expertise’.Footnote 116 As such, she recommends that the Dominican government respond to these ‘administrative and financial challenges by authorizing a management framework that allocates responsibilities among domestic and foreign state and nonstate actors’.Footnote 117 This includes empowering communities ‘in a bi-directional way’, which might refer to something akin to a collaborative governance approach.Footnote 118
3.3. Collaborative Governance
A further potential pathway towards community engagement with protection of UCH is through reflexive processes such as collaborative governance. ‘Collaborative’ or ‘new’ environmental governance has been praised for its capacity to foster communication between all key stakeholder groups, allowing the negotiation of collective preferences and the setting of rules for future management.Footnote 119 Inclusive systems of multi-party negotiation, which allow for wider collective preferences to steer the development of norms, could promote Pareto efficiency, as well as shape the overall governance framework. As Flatman claimed, what is needed with regard to competing sectors in the offshore environment is ‘a holistic view, global in scope, comprehensive in consideration. The provision of and continuance of energy supplies and other essential resources, and the control and reduction of climate change are intimately interlinked, not least of all in their impact upon cultural heritage’.Footnote 120
Adopting an inclusive approach raises numerous challenges, as highlighted in Section 2 above, yet the potential pay-offs are significant. In particular, by developing normative frameworks and new systems from the bottom up, with a central role for stakeholders, it is possible to achieve a more efficient use of resources and a better common consciousness in the group, and to enhance the legitimacy and efficacy of agreed norms. Ringer observed that the Chippewa tribe in Quebec felt a spiritual connection with and sense of stewardship over the prehistoric Mnjikaning fish weirs at Atherley Narrows. However, it was through collaboration between the Chippewas and numerous other interested stakeholders that the Mnjikaning Fish Fence Circle for the protection of the weir was created.Footnote 121 The successful outcome of the Lady Darling wreck tells a similar story, as Nutley stressed the essential role of multi-layered collaborative working between the local dive industry, interest groups, local council and state government.Footnote 122 In both examples, therefore, the relevant communities were shown to be effective at creating their own ‘rules of the game’ and systems of protection from the bottom up, without the need for intensive top-down rulemaking or formal scrutiny.
The effectiveness of collaborative governance in the protection of UCH can also be witnessed in the growing use of marine spatial planning (MSP) as a mechanism to better protect natural and cultural heritage in the marine environment. MSP is an increasingly central aspect of integrated ocean governance. The MSPP Consortium defines it as an ‘integrated, policy-based approach to the regulation, management and protection of the marine environment, including the allocation of space, that addresses the multiple, cumulative and potentially conflicting uses of the sea and thereby facilitates sustainable development’.Footnote 123 In effect, it is a process used to protect the collective interests of numerous overlapping stakeholders and communities who increasingly share space in the marine environment. That MSP can deliver enhanced protection for UCH is in little doubt. Many commentators have spoken of its potentialFootnote 124 and a recent pilot in the Baltic Sea explores the integration of MSP with heritage protection.Footnote 125
Existing research indicates three different reasons why transboundary MSP could deliver enhanced protection for UCH. The first, quite obviously, is that coordination of marine activities between competing stakeholders could better prevent inadvertent damage to UCH if it enables the avoidance of or rerouting around known or newly discovered UCH sites.Footnote 126 A second motivation for including UCH within MSP efforts is the development of a stronger sense of empathy towards UCH and its plight among the manifold stakeholders invited to participate. This helps to establish a common consciousness of the cumulative impacts within a shared social-ecological system.Footnote 127 The third reason for including UCH in MSP is particularly crucial. Integrating UCH stakeholders will permit all stakeholders – each with a direct or indirect interest in one another – to coalesce and collaborate on the optimum procedural and substantive rules of governance for shared and competing interests in the marine environment. Integrating UCH necessitates the recognition that MSP is, in effect, a multi-stakeholder ‘collaborative governance’ process arranged over marine space. It is capable of stimulating not just effective problem solving, coordinated effort, co-benefit development, resource integration, cross-fertilization of ideas, innovation, and the efficient co-location of activities between sectors, but also the unearthing and resolving of latent conflicts and misunderstandings between competing sectors through full and ongoing dialogue, the better alignment of objectives, and the establishment of enduring systems for collaboration and communication.Footnote 128
Indeed, it is clear that most of the overlapping sectors in the marine environment are open-minded to exploring solutions which can address the concerns of the heritage sector, while still stimulating sustainable blue growth.Footnote 129 As Bicket and others have said, collaboration with industry would be ‘economically sensible from the perspective of developers who often seek to find added value through public relations and community engagement’.Footnote 130 Proper integration and inclusion of all competing interests could stimulate a push towards some kind of ‘heritage offset’ payment system, much like ‘carbon offsetting’, requiring that developers who cause impacts on heritage make additional payments to further heritage protection efforts elsewhere, so as to reduce their ‘heritage destruction footprint’.Footnote 131 Yet cooperation between industry and UCH conservationists conceivably can go further. For example, offshore construction, mining, dredging, fishery, and shipping companies are all well placed to design effective and efficient rules and systems to minimize impacts on UCH from their offshore operations. Conversely, UCH conservationists are well placed to propose mutually beneficial activities, such as the sharing of data or heritage monitoring systems, which minimize cost and disruption to offshore projects. For example, collaboration between the dredging and trawling sectors and the UCH community has already provided significant improvements in the systems for the reporting of finds and the locating of UCH sites.Footnote 132 As Dromgoole puts it, intersectoral cooperation ‘can lead not only to improvements … to the day-to-day practicalities of management of UCH within the region, but also – through the sharing of ideas, experiences and best practice – [to] the general management techniques employed’.Footnote 133
In 2017, Van Tatenhove aptly referred to transboundary MSP as a ‘way of overcoming the “inefficiencies” that arise from fragmented governance regimes’, by providing ‘sectoral integration and incorporat[ing] hierarchical policies from different layers of government, offering opportunities for a more strategic and forward-looking framework for all uses at sea’.Footnote 134 Unsurprisingly, it is increasingly common to find statements or declarations highlighting the value of multi-stakeholder and multi-agency collaboration – whether locally, nationally, or regionally – if we are to effectively protect UCH.Footnote 135 Leshikar-Denton reminds us that cooperation is at the heart of the UCH Convention and that, accordingly, a ‘policy of cooperation among all stakeholders is the key for success’.Footnote 136 However, cooperation should not be understood – as it has been by too many for too long – as merely a requirement for co-existence at the international level, but as a need for headlong continuation towards greater inclusive, reflexive, and multi-level collaboration at the stakeholder level.
4. CONCLUSION: HARNESSING THE POWER OF THE COMMUNITY IN THE GLOBAL PROTECTION OF UNDERWATER CULTURAL HERITAGE
That communities – whether local or transnational, private or hybrid – are capable of providing an essential force in delivering more effective environmental protection, including the protection of heritage sites, is perhaps now uncontroversial. A burgeoning body of research highlights from different perspectives the importance of governance by non-state actors in addressing the collective action challenges of reflexive and complex environmental challenges, while operating in issue-linked and transnational networks. This article has explained where and how communities can be vital in the governance of UCH protection. In doing so, it has drawn out some of the key theories and rationales for utilising communities in the governance mix and highlighted the various efficiencies and practical advantages they can provide. It has also noted some of the critical discussions around the role and function of meta-governance and community incentivization in harnessing effective community co-regulation. It then also points to various mechanisms – such as education and participation, incentivization and collaborative governance – which can be utilized to drive up the capacity and engagement of communities with the protection of public goods.
The article has also compiled detailed evidence of the vital function of communities in the global protection of UCH, including submerged shipwrecks, landscapes, monuments and artefacts. It seems clear that communities provide an additional and, in many cases, all-important form of regulatory oversight for cultural heritage resources, which would otherwise be less effectively protected by national government agencies. The article illustrates many instances where communities of all kinds – be they coastal communities, maritime sectors, heritage sectors, hobbyists, or epistemic communities – have been utilized highly effectively in providing day-to-day supervision, monitoring, access control and conservation of our global UCH. Indeed, it has been demonstrated, with the use of case study examples, that the pooling of capacities and interests, the utilization of private resources, better reflexivity, and often improved observation of rules and norms can serve to address many of the fragmentation, compliance, and public goods production weaknesses inherent in the existing legal systems that seek to protect UCH.
While the discussion above notes some of the inherent challenges which accompany decentralized approaches to environmental governance, it also supports the view that such difficulties are a necessary part of achieving fully integrated and effective transnational solutions for complex global public good challenges, rather than an argument against community empowerment. It therefore offers further guidance and inspiration for future research in this burgeoning field, suggesting that stakeholders and policymakers should continue to review and study the optimal means to integrate the valuable role of the community in the protection of UCH.
Future research on the protection of cultural and natural heritage via community-oriented governance should continue to examine where and how community buy-in, a community sense of ownership, or any adapted or constrained models of private property rights could be utilized to integrate private community protection into wider public objectives. Models of public participation and facilitated stakeholder-inclusive processes should also continue to be examined as opportunities for issue-linked and multiple-scaled networks of communities who collectively problem-solve and develop the rules of the game, such that they foment new forms of group consciousness, new incentives, and new systems of ongoing synergy and collaboration.Footnote 137 One such process, in terms of protecting global UCH, is through transboundary MSP, wherein numerous marine sectors and interests are brought together to discuss common concerns and values, and develop solutions. With research in this area still in its early stages, efforts should continue to integrate UCH conservation concerns into MSP processes.Footnote 138
Finally, the research has demonstrated that public policy and hard laws can assist in facilitating and harnessing the power of the community, for instance, by constructing meta-regulation or co-regulation, which brings together or even empowers stakeholder communities. Future research can continue to explore the design and achievement of such co-regulatory mechanisms in the protection of UCH. Through the intelligent use of meta-rules, or what has elsewhere been called ‘smart regulation’,Footnote 139 it seems possible to create more effective models of protection for the cultural and natural environment which harness the power of the community. Developments in this field so far are sporadic, ad hoc, and lacking in wider dissemination or discussion. It is therefore time to produce best practice documentation and guidance for developing and under-resourced regions, so that they can better harness the role of their communities in protecting UCH. The discussions and recommendations raised in this article could help to enrich such future work, particularly accounting for the diversity of UCH and its stakeholders around the world. In so doing, we could expand the global protection of UCH by truly unleashing the power of the community.
