Protecting Sri Lankan Rights: The Modern Saga of Shipwreck “Avondster”

Somasiri Devendra, in Island, 13 June 2018, where the title is “Under the Waters of Galle:  A Prelude to the “Avondster’ Project”

The curtain rises: One morning in 2002 I received a call from the Additional Director General, Central Cultural Fund (CCF), Mr. H. D. S. Hettipathirana, to discuss a glitch in the Avondster project which was due to get off the ground. I was, then, wearing several hats: Consultant (to the CCF) and Special Advisor (to the Director-General, Archaeology) on Maritime Archaeology; and member of the Advisory Committee to the Ministry. I was also a member of ICUCH (the ICOMOS International Committee on the Underwater Cultural Heritage) and had been involved in the formulation of both the ICOMOS Charter and the UNESCO International Convention on the Underwater Cultural Heritage. Neither I – nor anyone else in the country – had had any maritime archaeological training: I was the proverbial one-eyed man in the kingdom of the blind! But, in all these honorary positions I strove to balance national and international interests.

The ADG/CCF had been shown a draft of a letter, not yet written (it never was). It said that as, in terms of Netherlands’ law, the shipwreck yet belonged to the Netherlands government they wished to formally gift it to Sri Lanka and to join Sri Lanka in exploring and excavating it. The question was asked whether Sri Lanka was willing to accept the gift. The letter shown was only a draft: it would be written only if they were assured of a positive response.

A quick answer was required. One came to mind, but I required time for consultation. Sri Lanka was very much a “new kid on the block” in maritime archaeology and we could not afford to commit a diplomatic faux pas. A hasty response could place the Project at risk. Moreover, this matter involved two sovereign nations: the CCF could not make a commitment in the country’s name.

Script is read, and the stage directions: I read the draft. According to Netherlands’ law, the State was the successor to the VOC. The Company, I remembered, had been in a bad way after the outbreak of the Napoleonic wars. The Stadtholder (aka “King”), William V, had fled the country and, at home, the Batavian Republic had been established. The Republic had initially helped the VOC but had later liquidated the Company in 1798 to become its legal successor. On its Assets Register were all ships afloat or shipwrecked. Thus, though the Avondster had been wrecked a hundred and fifty years previously she now belonged to the Netherlands Government, according to Netherlands’ laws.

Although the Netherlands Government only wished to gift it to Sri Lanka, but it had to assert that it owned the ship. And, to accept it, Sri Lanka would have to recognize that the shipwreck belonged to the Netherlands, even though it was in Galle. The question now asked was: “Would Sri Lanka accept this gift”? I bought time by invoking the Antiquities Act which placed all sites under the authority of the Director General, Archaeology. As it stands, Art. 2(3) of this Act states that:

“All undiscovered antiquities (other than ancient monuments), whether lying on or hidden beneath the surface of the ground or in any river or lake or within the territorial sea of Sri Lanka, shall be deemed to be the absolute property of the State, subject to the provisions of this Act”. “Territorial sea” is defined as “the area declared to be territorial waters of Sri Lanka by Proclamation made under the Maritime Zones Law, No.2 of 1976.”

Therefore the CCF was not the proper authority to answer the question asked. It could be answered only by the Director General, Archaeology. ADG/CCF called a meeting with the Archaeological Department, asking me to draft a reply to be tabled. In the draft I noted that:

1. The Department was the statutory authority, although it authorized the CCF to carry out certain functions.

2. The Dept. was fully aware of and committed to the international agreements laid down by UNESCO in 1956 and notes that the Netherlands also follows them.

3. The Dept. will ask CCF to submit a project proposal.

4. The question of right to the site involves two sovereign nations and will have to be referred to the Foreign Ministry.

This was a correct position but I was curious as to how other countries had dealt with the problem of the many VOC ships sunk in the territorial waters of many states. I did some scouting around. I decided to seek assistance from fellow ICUCH member Jeremy Green of the Western Australian Maritime Museum. He advised me to go along with the Netherlands’ proposal as Australia itself, had signed a similar agreement and had set up the Australian-Netherlands Committee on Old Dutch Shipwrecks (ANCODS). This Committee was tasked with maintaining and allocating artifacts from 17th and 18th century Dutch shipwrecks off the coast of Western Australia. In 1976, the HISTORIC SHIPWRECKS ACT 1976 enacted where the nature of the Netherlands’ claim for these centuries-old shipwrecks was very clearly spelt out:

“HAVING REGARD TO THE FACT:

A. That vessels that belonged to the Dutch “VEREENIGDE OOSTINDISCHE COMPAGNIE” known as the V.O.C., hereinafter referred to as “the V.O.C.”, were wrecked on or off the coast of Western Australia;

B. That the Netherlands, by virtue of article 247 of the 1798 Constitution of the Batavian Republic, is the present legal successor to the V.O.C.:

AGREE AS FOLLOWS:

Article 1: The Netherlands, as successor to the property and assets of the V.O.C., transfers all its right, title and interest in and to wrecked vessels of the V.O.C. lying on or off the coast of the State of Western Australia and in and to any articles thereof to Australia which shall accept such right, title and interest”.

Australia, of course, was not a sovereign state in 1798 and could not make any counter-claim to the wrecks.

The Dutch arrive – and depart

This was where the Australian solution did not suit us. By the time the VOC arrived in Sri Lanka, we had our own government and, in fact, the VOC arrived here at our invitation. It established its presence here by a show of force superior to that of the Portuguese who were a thorn in the King’s flesh. The fact remains that it did arrive here at the invitation of King Rajasingha ll. The King had made the formal relationship to the Company very clear in his correspondence (in the Portuguese language) with it,viz.

“Raja Singa Raju, Most Exalted Monarch and most Potent Emperor of the far famed Empire of Ceilao to Adrian van der Meiden, Governor of my Imperial fortress of Galle send much greeting.

My Imperial Person took much trouble to get the Dutch nation to come to this my Empire, and likewise when Admiral Adam Vestrevolt arrived with the vessels of the fleet at this my Empire…”

Shorn of the grandiloquent phrases, the nature of the relationship between the two parties is very clearly spelt out, even if the reality was somewhat different. The VOC, too, paid lip-service to this relationship, declaring piously that it had arrived here for commercial purposes and at the invitation of the King of Kandy. Ultimately, when it departed it was, again, in the face of superior force and at no bidding of the king.

The actual departure of the VOC. resulted from the impact of the Napoleonic wars on European nations. In 1795 Emperor Napoleon I of France, backed by popular support from the Netherlands, forced the Dutch Stadtholder, William V, to seek refuge in Britain. He then replaced the monarchy with the new Batavian Republic. The Company’s officers threw in their lot with the new Republic, thus giving the British the necessary leverage to take over VOC possessions in Sri Lanka in the name of the exiled Stadtholder. In the face of superior force, the VOC departed these shores in 1796 – a clear two years before the Constitution of the Batavian Republic (1798) from which the Netherlands’ claim to VOC shipwrecks flow. By 1798, therefore, the VOC had no assets in this country for it to lay claim to: not even to a 150-year old shipwreck. They had departed without leaving behind any “left luggage”.

Four years later, in 1802, the Batavian Republic formally ceded Ceylon to the British under the Treaty of Amiens. I came across a relevant reference in the Ceylon Government Gazette of July 7th. 1802. It is an extract from the Treaty of Amiens of 1802 by which the Dutch ceded Ceylon to the British. I quote:

‘Clause 3 – His Britannic Majesty restores to the French Republic and to her allies, viz., to His Catholic Majesty and Batavian Republic, all the possessions that formerly belonged to them, and that have been conquered and occupied by the British forces in the course of the present war, with the exception of the Island of Trinidad and the Dutch possessions on the Island of Ceylon.

Clause 4 – His Catholic Majesty cedes and guarantees in full property and sovereignty to His Britannic Majesty the Island of Trinidad.

Clause 5 – The Batavian Republic cedes and guarantees in full property and sovereignty to his Britannic Majesty all the possessions and establishments in the Island of Ceylon that before the war belonged to the Republic of the United Provinces and to their East India Company.

Amiens, 4th day of Germinal (March 27th), 1802’

Thus, the Dutch lost Ceylon to the British. A hundred and fifty years later the British, too, departed these shores declaring, by the “Ceylon Independence Act of 1947” (Westminster), this country a self-governing Dominion within the British Commonwealth. Ceylon, in turn declared itself a self-governing “Democratic Socialist Republic of Sri Lanka” in 1972, severing the last tenuous link with the British Crown. It therefore appeared to me that Sri Lanka, unlike Australia, was in a position to lay claim to all wrecks in its seas.

Players gather: At the meeting it was proposed that the Ministry of Foreign Affairs be consulted at an informal level. I suggested that we contact Dr. Rohan Perera, then Legal Advisor to the Ministry (and presently our Permanent Representative to the UN at New York), with whom I had met in relation to maritime archaeology law in the lead up to the UNESCO Convention. With the suggestion approved I telephoned Dr. Perera while the meeting was yet in progress and explained the problem to him. He immediately agreed to meet us and a very early date was agreed on.

We arrived at the venue: Dr. Wijepala (DG/Archaeology), Dr.Siran Deraniyagala (former DG/Archaeology), Mr. Hettipathirana (ADG/CCF) and myself. Dr. Perera was in his chambers with his staff. We started off with a recapitulation of the problem and the need for the Ministry to advise the Department and the CCF so that all government institutions would speak in one voice. Dr. Perera turned to me and asked me for my opinion, and I replied leaning heavily on the Antiquities Act, the Maritime Zones Law and the fact that the Avondster was in internal water and not even in the territorial sea. I then spoke about what I had learnt about the nature of the Netherlands claim to the shipwreck. Dr. Perera agreed, but said that we should only depend on Sri Lankan law and not be concerned about any other law. He advised the Department and the CCF that they should be guided by the Antiquities Act and that, should the matter go beyond that, it should be referred to him. On that note, the meeting ended.

Problem vanishes

A few days later, with neither of the “draft” letters being written, the Netherlands authorities and the CCF entered into a formal Agreement for Sri Lanka and the Netherlands to undertake the study of the Avondster wreck site for a period of three years. The question of title was not raised nor referred to and the focus shifted to the heritage value of the wreck, concerning which there could be no dispute. The Avondster Project became the first maritime archaeology project to be conducted under the requirements of the Annexe to the UNESCO Convention. It resulted in the design of an Application form, to be submitted annually to the Director General, Archaeology by the Project proponents, which spelt out the obligations of each party. I was invited to present a paper on this experience [“Designing a licensing system for maritime archaeology: The Sri Lanka experience.”] at a UNESCO Convention on the Protection of the Underwater Cultural Heritage, for the Americas, in Kingston, Jamaica.

How did our problem solve itself? The answer lay in a sequel to the meeting with the Legal Advisor, Ministry of Foreign Affairs, which was made known to us, informally, only some time later. It appeared that the Netherlands authorities had sought a meeting with him, later the same day, where they had broached the question. By our early action we had placed all the information in the hands of Dr. Perera at the correct time.

Thus Sri Lankan Law and interests prevailed. And, perhaps, the Law of Cause and Effect.

***  ****

ALSO NOTE

“Lanka’s Shipwrecks deciphered by Dharshana Jayawardena,”  15 June 2016, https://thuppahis.com/2016/06/15/lankas-shipwrecks-deciphered-by-dharshana-jayawardena/

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