INTRO- Pat Clyne [Publisher/Executive Director, IMAC Digest]

The following interview was conducted in Paris, France just minutes after the second Draft Convention on The Protection of Cultural Heritage was adjourned. Robert Blumberg, from the office of Ocean Affairs at the Department of State, is the senior delegate to the convention representing the United States.

The U.S. delegation, with 8 delegates was one of the largest at the convention, and its members varied in their personal ideologies as well as their professions. The majority of the delegates represented either the archaeological community or government interests. Only one of the delegates, Greg Stemm, President of ProSEA (Professional Shipwreck Explorers Association) represented the concerns of the commercial salvage industry. The very industry this international convention was established to eliminate. To say that the deck was stacked would be understating the makeup of this delegation.

At a State Dept. meeting in Washington D.C. on March 30th, that we attended, the concerns of not including at least one Admiralty attorney fell on deaf ears. The Maritime Law Association, which upholds the long established concepts of the Federal Admiralty Courts, and champions the continued practice of the Law of Salvage and Finds, was rejected from being included in the delegation.

Although we were out gunned in Paris, even within our own delegation, Greg Stemm of ProSEA, with Bob Blumberg's assistance, managed to arrange a special presentation to the worlds delegates on behalf of our industry. Greg did an outstanding job and was the only delegate at the convention to make such a presentation.

As senior delegate, Blumberg was extremely effective and a polished negotiator. He adamantly defended the U.S. position on "multiple use" of the shipwreck resources, and upheld the precepts of the "Law of The Sea Convention." However, in what seemed as a surprise deviation from last years strategy, Blumberg announced a U.S. provision that read, "The laws of salvage and finds shall not apply to underwater cultural heritage." This, in and by itself, would spell disaster to the commercial salvage industry.

This provision, he explained, would be "with reservation." A legal caveat that would allow for the submission of approval in accordance with Article 21- which might allow for "reservations and exceptions." Could this be more bureaucratic smoke and mirrors that could spell the end of shipwreck salvage ? Or is it a legitimate legal maneuver for the U.S. position to be accepted by the convention?

The frustration of being seen as a pariah state, who's laws, if not it's views, could not allow for it to comply with all of UNESCO's provisions, looked, towards the end of the convention, as though it might be taking a toll on Blumbergs patience as well as his concern over asserting U.S. views to reach a concensus before the close of this assembly.

Here is Mr. Blumbergs interview:

Senior U.S. Delegate Bob Blumberg at UNESCO headquaters in Paris

IMAC- How do you think this years convention compared to last years?

BLUMBERG- There are still some major issues (emphasizes major) to be resolved from our standpoint. I have to say that I’m concerned about the process, and our ability as an observer in this process to successfully assert our points of view, and that we will be able to reach a consensus document that will both protect underwater cultural heritage and that will be consistent with international law and that can accommodate the range of interests that U.S. laws and programs accommodate. All of those things are critical and I have my doubts, particularly after this week they’re heightened whether all of those goals can be achieved.

IMAC- Why is it that the rest of the delegates don’t take the LOSC (Law of The Sea Convention) as seriously as we do, or you do?

BLUMBERG- Well, I think in large part, most of the delegations that are speaking here are represented by their cultural ministries, and they read the convention the way they want to read it. We, and a substantial number of other countries read it quite differently, including Russia, the U.K, Norway., France and others.

IMAC- Our constituents- HSSPC (Historic Shipwreck Salvage Policy Council) and readers on the internet want to know what the U.S. position is. We’ve been writing all week about brackets and footnotes and quite frankly that’s not very interesting. I think we need some meat here as to the feelings of the U.S. State department on where this is going, if it is going anywhere.

BLUMBERG- We still believe that a convention is important, we think it can make a contribution and that we can accommodate the range of interests that are accommodated under U.S. law. But, it’s got to be done in a manner consistent with international law, as we understand it.

IMAC- Can they accommodate U.S. law. For instance, the law of salvage and finds that we (the professional salvor) find so necessary as an industry, and that they are so adamantly against. Is there any room for compromise at all? In the working groups I was in, I didn’t see much room.

BLUMBERG- We’re at the very early stages of this negotiation still, even though they think the resolution that came out says that they think another meeting may be necessary. In my view, if we are going to reach a successful compromise, several more meetings will be necessary.

I think there are some basic misunderstandings with regard to the common law of salvage, where it applies and what the result of including it or not including it with and without a reservation as we proposed in this convention would be. That is something perhaps we can clarify between now and the next session. But as we said at our public meeting, or as I said at the public meeting,(Wash. D.C.) there are some essential elements of salvage law that, we believe, can be accommodated in a combination of this convention and implementing legislation without necessarily having salvage law itself continue to apply. But that’s something we’ll have to talk about further, we intend to talk about it further with the Maritime Law Association and others. I know they strongly want to see salvage law continue to apply.

IMAC- Wouldn’t it be best to get someone from the Maritime Law Association on the delegation?

BLUMBERG- This meeting is open as you know, just the way you participated in it. They’ve restricted delegation size and we will certainly continue to consult with the Maritime Law Association as well as with the Archaeological community. But if delegation size remains the way it is, we’re limited to six, and I think we’ve got the full complement now. But that doesn’t mean they can’t come to the meeting just the way you have and participate and speak with us. I welcome their views, I respect their views.

IMAC- A number of archaeologists that I have spoken with, not only here, but (at other conventions) around the world, when I speak to them on a one to one basis and I try to show them the work that we’ve been doing over the years, many of them seem to be surprised. Many of them are not aware of the conservation efforts that have been put forward by the professional historic salvor. Do you find that to be true with any of the archaeologists that you’ve spoken to here?

BLUMBERG- I think there’s a lot of education to be done both on the legal side and by us with other delegations and between yourselves and the archaeological community and by the archaeological community and you. They (Archaeologists)have positions that you may not fully understand and I’m sure they have positions that they don’t fully understand. But that’s one of the advantages to having taken our time as we go through this process and educating each other and becoming more attuned to the concerns of the other interest groups. After all, I think we all have a common goal of protecting underwater cultural heritage, we just approach it differently.

IMAC- Do you have anything else you would like to add about this years convention?

BLUMBERG- It’s a long difficult process, and the points of views often start at 180 degrees off each other, and reaching compromise won’t be easy, but we’re cautiously optimistic.

IMAC- Just one last thing. At one point I noticed a little bit of tension between the U.S. delegation and the chairman, where he decided not to acknowledge your point of view. But after the coffee break he had a change of heart and came around- What happened there?

BLUMBERG- Well we just expressed our views on the subject and I think we came to a meeting of the minds, and we’ll leave it at that.

Clarifications- In a conversation with Mr. Blumberg since this article has been posted, Mr. Blumberg has pointed out that our industry was not the only interest on the U.S. delegaton from the private sector. Mr. Jerome Hall, Executive Director of the Institute of Nautical Archaeology at Texas A&M, is also from the private sector.

Also, in the paragraph that reads: "They (Archaeologists) have positions that you may not fully understand and I’m sure they have positions that they don’t fully understand." Mr. Blumberg assured me, what he meant was, "...and I'm sure 'YOU' have positions that they don't fully understand." I'm sure he was right.- PC

Interview with NOAA's Attorney to UNESCO - Ole Varmer

Ole Varmer, legal council for NOAA was one of the attorney advisors on the U.S. Delegation. Mr. Varmer, as council for NOAA’s Marine Sanctuaries Program, helped negotiate a resolution for the continued historic shipwreck salvage operations in the Florida Keys National Marine Sanctuary. Mr. Varmer, working with the Secretary of State of Florida and The Historic Shipwreck Salvage Policy Council (HSSPC) was able to formulate guidelines within the strict parameters of the Marine sanctuaries program that encouraged multiple use of the cultural resources while following strict archaeological guidelines.

Here is Mr. Varmer's interview taken in Paris at the conclusion of the UNESCO convention.

IMAC- What is your opinion of how the convention went?

VARMER- From the perspective of the way the convention's gone, the big obstacles, I think, jurisdiction and sovereign immunity are going to be very difficult for them to work out. If they can't get of like mind in working out on how to handle those issues, I don't see significant progress being made. They've made progress on the scientific standards, which I think are consistent with everything you and I've talked about. So as far as that goes I don't think that's a problem. And, as Greg (Stemm) was saying, maybe that should be a matter of policy by incorporating these things and applying them. I think that's a good idea to show people because there's a lot of suspicion and one of the things I heard in the working groups, that we got clear, was they're not against commercial entities working on projects. When you look at the international cooperation in the charter you will see something the salvors have been complaining about for a long time, about how archaeologists won’t work with them. I would think you could point to that language at being the direction they should be working with you. You have to look at it for yourselves, it’s very subtle and it’s not binding, but it's something that, if you can find someone to work with, I think that they will be able to point at that language and say, "This is consistent with the charter."

IMAC- So, you think there's room to getting private recovery...

VARMER- Right. And all the objectional language that the salvage community pointed out to us that they said was a problem, we’ve got bracket language of “should” instead of “shall” to make sure it's discretionary and not mandatory. But also on the other hand, there was some progress made on the concepts of what we are both interested in, in resource protection. I don't know... this is a tough crowd.

IMAC- Yes, when you and I were in that working group the other day, that was some of the toughest language on commercial salvage and trade. It sounded like that whole group was against anything that involved commercial salvage or salvors.

VARMER- Right. What we were trying to make sure is, to focus on keeping the collection in tact and getting recognition that the collection could remain partly on the seabed, partly in the museum and that all unique, significant items are maintained. That is largely consistent with what we worked out with you. The sidebars discussed some of the things that they find objectional that is a matter of principle, but we are starting to get at all of these things. I don't think they're being well received, but at least they are listening. I think one of the goals to get them to understand that we are not trying to force our flexible system into the laws of Tunisia, Greece and Poland. We are just trying to get them to understand is that just make the umbrella big enough for us to do things the way we think can and should be done.

IMAC- In talking to a few delegates, I got the impression, while explaining some of the ways we work in cooperation (with archaeologists) on some of these sites, that they didn't have any idea how well it's been working. They wouldn't comment on it, they seemed more reflective. They seemed doubtful and couldn't see how it could work. How do we convince them this is a system that is a win/win situation for everybody? If you throw out the private sector, the salvors, you just have the archaeologists wishing they could find a wreck to work on. The cooperation between the two is almost a symbiotic relationship.

VARMER- To give a case example, I think Greg's presentation was very good when he was talking about how the private sector does good science and technology. My informal advice to him was at the next presentation don’t go on, get them focused first on that you do good science. Don't try to get the whole phased approach. First get them understanding you can do good surveys. You have access to equipment that they dream of. You're willing to work with them within their scientific standards. Get them first with that before you take them down, and ask them to swallow the whole hook, jump in your boat ...

I've been in the middle of this issue for a long time and both sides are paranoid with regards to each other to some extent. I've been working hard... when I go to archaeologists I tell them you're being a little bit hypocritical, you need to be more open minded. I say to the salvors, you too can be very judgmental by saying nobody will work with us. You find your common ground, which I think is based on science and technology and a love and care of the resource. I think the salvors' strategy of constantly ignoring or saying that the future of preservation, it doesn't work. Instead, I would go through case by case examples of how this is the type of wreck we would leave down and this is the type we'd bring up. I think most wrecks kind of come in the middle, what we called in the Florida plan, the surgery approach, which would address when things become uncovered and they are very valuable and we're worried about leaving them, that's a perfect example of stuff that needs to be uncovered. But, then we go back, we stabilize the site and unless we have science show us these timbers are deteriorating at a more rapid rate now and maybe it's time for them to come up. Anyway, I think there's room for hope with the education process. I think both sides... I'm doing what I can to make archaeologists become more open minded. I'm doing what I can to get salvors to work with archaeologists.

IMAC- You know we're "all" open mined. (Tongue in cheek)

VARMER- Yes, I mean, everyone comes with their bias and this is human nature. I feel like I'm in the middle of the road and taking slack from both sides, but I don't mind that. I've taken the path I think is right and hopefully we will continue to have this debate and it'll turn out better in the end for it. I thought the process here, with more open delegation, that there was more balance. I think this was a better meeting than the last meeting as far as more useful constructive debate, getting language on paper and getting away from yelling at each other that went on at the last meeting. That was my sense of where we made more progress. Even in plenary last time there was this back and forth. Now we're starting to move to marine league instead of shouting at each other from both ends of the ocean!

IMAC- The U. S. position paper, the law of salvage and finds, it's mentioned here about considering not extending over ten years on ships. Can you explain that?

VARMER- This was in regards to sovereign vessels, which in the United States would be our Naval vessels, the position was we have title, we don't give up title unless it's expressly abandoned by the sovereign, that the law of salvage and finds should not apply to sovereign, immune vessels and that no recovery should occur without the authorization of that sovereign. Basically, it's a codification of policy with regard to sovereign immune vessels.

IMAC- Would there be language in there that specificly states "sovereign immunity”? Because there isn’t in the position paper.

VARMER- No, that's because... well, there could be, but that is a term defined by the Law of the Sea. They have wording in there that's consistent with article 236 Law of the Sea as to basically what a sovereign immune vessel is, which is the warships, aircraft, etc. Basicly, the limiting term is- It's got to be on non-commercial service. So sovereign immune vessels would not only be the Navy vessels, but for example the NOAA research vessels. To the extent we've lost anything in a 100 years. You could go find it, take pictures of it, but if you want to start taking it apart and taking it home, you need a permit from us.

IMAC- The reason I asked about the language is because it wouldn't refer at all, say for instance, to period shipwrecks that we would be interested in salvaging. Would there be any connection there? Meaning, 16th, 17th century vessels.

VARMER- Those are not our sovereign immune vessels, but what's interesting to see is how Spain, Portugal, the Netherlands, Sweden, Germany, what they...what I'm hearing is we want the sovereign immune principle maintained, we want the science to apply to them, but I don't think they're going to be willing to give up title, but I saw a window where the Latin/Caribbean countries want a time limit, and I think the sovereigns have not said no, but I think they want to go back and talk. I think personally this issue should be taken out of the convention, but that's something that Spain needs to work out with the others on the side. Don't try to make this a property convention, don't try to make it a sovereign immune title convention. Let's agree there's a sovereign immune interest, let's agree how to manage those shipwrecks and when somebody thinks it should be recovered the Dominicans and Spain need to be consulted to figure out how to do that. That's the way we do it with our national programs. That's the way Australia does it with regards to Dutch vessels in their waters. In that way we can preserve sovereign immunity and nothing's recovered without the coastal state and the sovereign both agreeing that that should be done. We shouldn’t try and address title. We should avoid all ownership issues and focus on the science. And frankly, if they don't want to address the salvage of it, that probably works out the best for all of us. Let's focus on science and agree that if it's 100 years or over, these scientific principles should apply and figure out, O.K.- that coastal states make the call this far out and the flag states make the call out in the deeper areas. But we still need to make that work out- who’s making the call? And what scientific principles are being applied? I think there's some common ground there that everyone can support.

END OF INTERVIEW.