Legal Protection of Underwater Cultural Heritage: National and International Perspectives in Light of the "Black Swan" Case

At the Joint AIA/APA Annual Meeting, behind held at the Marriott Downtown Hotel in Philadelphia, SAFE board member Eric Powell will moderate a "must attend" Workshop on Saturday, January 10, 2009 for anyone interested in evolving legal mechanisms that involve underwater cultural heritage.

The recent discovery of the "Black Swan" treasure off the coast of Spain by the US-based underwater salvage firm Odyssey Marine Exploration, Inc. has re-ignited the long-simmering debate between underwater archaeologists, scholars, treasure hunters and their investors, attorneys and sovereign nations over who has the right to claim, recover and market the world's undersea archaeological resources. Recent legal action lodged by the Government of Spain against Odyssey Marine, now being heard in federal court in Tampa, FL, promises not only to settle ownership questions over the estimated half billion dollar "Black Swan" treasure that Odyssey Marine recovered, but to serve as a landmark decision that maritime attorneys, commercial salvagers, archaeologists and governments will employ as precedent in future cases. Lost amid the flurry of rhetoric, claims and counterclaims, however, are the questions that archaeologists often ask: After decades of experience in which commercial treasure hunters have torn apart ancient sites and allowed their finds to be scattered, how can we know whether commercial treasure hunters - operating in secret and driven by the demands of investors for "cost effective" methods - truly adhere to practices that meet internationally recognized archaeological standards? Does the practice of "admiralty arrest," by which commercial salvagers claim legal rights to a site, while keeping its location secret, prevent archaeologists from examining the same location that they discover independently? What final authority exists that allows archaeologists to assert their rights amid the tangle of international and national laws, competing jurisdictions and evolving legal concepts that govern or influence the outcome of such cases? Four leading authorities from the archaeological and legal worlds will discuss the specifics of the Black Swan controversy and its broader implications for both cultural heritage policy and the practice of archaeology.

Confirmed Panelists:

Michele C. Aubry
As an Archeologist in the headquarters office of the National Park Service in Washington, DC, Michele Aubry develops policies, regulations, and guidance on archeological and related historic preservation program requirements for application at federal government-wide levels. In addition, she provides assistance to the NPS, other federal agencies, and governmental and non-governmental partners. She also coordinates NPS programs that document, interpret, preserve, and protect archeological sites in units of the national park system. Author of the NPS Abandoned Shipwreck Act Guidelines (1990), she is an expert in the laws, regulations, policies, and programs relating to underwater cultural heritage at the federal, state, and local levels of government. She served as a U.S. Delegate to the UNESCO meetings of Government Experts that developed the Convention on the Protection of the Underwater Cultural Heritage (2001). In addition, she served on U.S. negotiating teams that developed international agreements, signed by the United States, concerning the shipwreck RMS Titanic (1999) and the sunken French vessel La Belle. She provided advice to the Kingdom of Spain about the shipwrecks Juno and La Galga, said to be within Assateague Island National Seashore, and obtained NPS services for the conservation and long-term storage of the objects that had been collected by the commercial salvager, Sea Hunt Inc., and turned over to Spain at the conclusion of litigation. She is currently working with the Government of the United Kingdom and Biscayne National Park about NPS management of the shipwreck HMS Fowey. In 1999, Ms. Aubry was appointed by the Governor of Maryland to the state’s Advisory Committee on Archaeology, and has served as Committee Chair since 2004. She is a graduate of the University of California at Riverside (M.A., 1977) and Occidental College (A.B. cum laude, 1972).

David J. Bederman
An acknowledged authority on international law and its impact on American government, the protection of property rights, the management of natural resources and admiralty and maritime law, David J. Bederman is the K.H. Gyr Professor of Private International Law at Emory University in Atlanta, GA. Having served as a litigation consultant to the U.S. Departments of Justice, State, Treasury and numerous federal agencies, as well as a legal advisor at the Iran-U.S. Claims Tribunal in the Hague, Professor Bederman also advises and represents clients on important constitutional and international law issues, including a number of cases before the U.S. Supreme Court, significant international arbitrations, and issues related to underwater cultural heritage issues, sovereign immunity questions and property rights matters. He is a member of the Board of Editors of the American Journal of International Law. He also serves on the Board of Directors of Odyssey Marine Exploration, Inc., advising the firm on various legal situations, including the salvage of SS Republic, the "Black Swan" discovery and other treasure ships. In addition to a number of books and dozens of articles and essays, his major publications include Globalization and International Law (2008); The Classical Foundations of the American Constitution (2008); The Spirit of International Law (2002); International Law in Antiquity (2001); and International Law Frameworks (2001). Prior to his current position, Professor Bederman served in private practice with the Washington law firm Covington & Burling LLP and has lectured widely, as Fulbright Distinguished Chair for Canada, lecturing in international and constitutional law at Osgoode Hall Law School in Toronto, and as visiting professor at the University of Virginia Law School and New York University Law School. A graduate of Princeton University (A.B. international affairs, 1983), the London School of Economics (M.Sc., Marine Affairs, 1984) and the University of Virginia (J.D., 1987), after which he clerked for the Hon. Charles E. Wiggins, Judge of the U.S. Court of Appeals for the Ninth Circuit. Professor Bederman also holds the coveted Diploma of the Hague Academy of International Law, as well as a Ph.D. in Law from the University of London. His ongoing research interests involve legal theory and history, admiralty and maritime law, and federal practice and procedure.

Caroline M. Blanco
As Assistant General Counsel for the Environment at the National Science Foundation, Caroline M. Blanco she provides advice on the environmental and cultural resources laws. Prior to assuming her current position, she served as a trial attorney in the Environmental and Natural Resources Division of the U.S. Department of Justice, where, where from 1991 until 2007 she specialized in heritage resources law and historic shipwreck litigation and was twice a recipient of the Attorney General's Award for Distinguished Service. Ms. Blanco is co-author of Cultural Property Law: A Practitioner's Guide to the Management, Protection and Preservation of Heritage Resources (American Bar Association, 2004) and Heritage Resources Law: Protecting the Archaeological and Cultural Environment (John Wiley & Sons, 1999) and has written several articles on underwater cultural property law and an essay (coauthored with Ole Varmer) on U.S. laws protecting underwater cultural heritage published in Legal Protection of the Underwater Cultural Heritage: National and International Perspectives (Kluwer Law International, 1999). She also served as a member of the U.S. negotiating team responsible for developing an international agreement to protect RMS Titanic in 1999. Prior to her government service, Mr. Blanco was a litigation associate at the law firm of McCutchen Doyle Brown & Enerson, San Jose, California. She received her J.D. degree, cum laude, in 1999 from Washington College of Law at American University in Washington D.C. She is a founding member of the board of directors of the Lawyer's Committee for Cultural Heritage Preservation (LCCHP).

James A. Goold
An attorney at the Washington, DC office of Covington & Burling LLP, James A. Goold, manages a practice that spans a diversified range of domestic and international litigation, arbitration, and regulatory matters, including US and international product liability litigation and related counseling and regulatory/legislative projects and litigation for and against foreign governments on matters involving admiralty and cultural preservation disputes and insurance coverage arbitrations. He is currently lead attorney representing the Kingdom of Spain in the "Black Swan" case, now being heard in federal court in Tampa, FL. Mr. Goold has served as past Chairman of the Board of Directors and General Counsel for the Institute of Nautical Archaeology (College Station, Texas and Bodrum, Turkey) and Chairman of the Executive Committee and General Counsel of the RPM Nautical Foundation (Key West, Florida). In recognition of his distinguished service for the Kingdom of Spain in past admiralty law cases, Mr. Goold was named Commander of the Royal Order of Isabel the Catholic (Cruz del Orden de Isabela Catolica) in 2000. He is a graduate of the University of Chicago School of Law (J.D., 1976) and Weslyan University (B.A., 1972).

Jerome L. Hall
A Nautical Archaeologist and Associate Professor in the Department of Anthropology at the University of San Diego, Jerome Lynn Hall's ongoing research projects include a 17th-century northern European merchant shipwreck in Monte Cristi Bay off the north coast of the Dominican Republic, as well as the documentation and publication of a 1st-century A.D. Kinneret Boat recovered from the Sea of Galilee. Hall's most recent writings on submerged cultural resource management include "The Fig and the Spade: Countering deceptions of Treasure Hunters," in AIA Archaeology Watch (2007) and "The Black Rhino," in the Journal of Maritime Archaeology (2007). Dr. Hall has served as the underwater archaeologist for Puerto Rico and President of the Institute of Nautical Archaeology at Texas A&M University, where he received his doctorate in anthropology with a specialty in nautical archaeology in 1996.

Ole Varmer
As attorney-advisor in the Office of International Law at NOAA (National Oceanic and Atmospheric Administration, U.S. Department of Commerce) in Washington, DC, Ole Varmer is an expert in the laws pertaining to historic shipwrecks with primary responsibility for providing advice involving cultural and historic resources, maritime zones and boundaries and coastal zone management, Mr. Varmer served a key role as member of the U.S. Delegation to the United Nations Educational, Cultural and Scientific Organization on the draft UNESCO Convention for the Protection of the Underwater Cultural Heritage in 2001. As counsel for NOAA's Marine Sanctuaries Program, he helped negotiate a resolution for the continued historic shipwreck salvage operations in the Florida Keys National Marine Sanctuary and, working with the Secretary of State of Florida and The Historic Shipwreck Salvage Policy Council (HSSPC), formulated guidelines within the strict parameters of the Marine Sanctuaries Program that encouraged multiple use of cultural resources while following strict archaeological guidelines. He is co-author of Heritage Resources Law: Protecting the Archeological and Cultural Environment (Wiley, 1999) and author of numerous articles on cultural heritage law, including "The Case Against the 'Salvage" of the Cultural Heritage," Journal of Maritime Law and Commerce (1999), and chapters in Legal Protection of the Underwater Cultural Heritage: National and International Perspectives (Kluwer, 2000), The Protection of Underwater Cultural Heritage: National Perspectives in Light of the UNESCO Convention 2001 (Nijhoff, 2006), and Underwater Cultural Heritage at Risk: RMS Titanic (UNESCO/ICOMOS, 2006). He is a graduate of Benjamin Cardozo School of Law at Yeshiva University in New York (J.D., 1987).


Moderator: Eric Powell, Senior Editor, Archaeology Magazine

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