Treasure, Shipwrecks, and Property Law

“The owner of a sunken ship or associated cargo, as well as the descendants of the people associated with the ship, cargo, or settlement, may have a particular interest in, if not legal rights to, the remains. Other stakeholders that have a particular interest in UCH include archaeologists, historians, educators, recreational divers, museum patrons, tourism operators, commercial salvors, and treasure hunters.” –Ole Varmer[1]

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The Holy Grail of Shipwrecks

On December 5th, 2015 Colombian President Juan Manuel Santos announced the discovery of the San Jose, a Spanish galleon carrying over ten million dollars in gold, silver, and gems that sunk over three centuries ago.[2] The ownership of the sunken cargo, now estimated to worth more than one billion USD, is disputed between Colombia (the owner of land on which the ship and its cargo was found) and Spain (the historical owner of the sunken ship).[3] The foundation of the ownership of the cargo stems from the dispute over which type of rights trump the other: land rights or cultural heritage rights.

The United Nations Educational, Scientific and Cultural Organization’s Convention on the Protection of the Underwater Cultural Heritage & Spain’s Claim 

The United Nations Convention on the Protection of the Underwater Cultural Heritage of 2001 (“UCH Agreement”) governs issues related to underwater archeological finds.[4] The purpose of the UCH Agreement is to regulate the more recent development of the area of underwater archeology, especially that in international waters, and to protect those potential artifacts from exploitation. [5] The San Jose falls within the definition of underwater cultural heritage (“UCH”) under subsection (1)(a)(ii) of the UCH Agreement:

[UCH] means all traces of human existence having a cultural, historical or archaeological character which have been partially or totally under water, periodically or continuously, for at least 100 years such as . . . vessels, aircraft, other vehicles or any part thereof, their cargo or other contents, together with their archaeological and natural context; [6]

However, although the convention defines the meaning of UCH, it “does not regulate the ownership of submerged historical remains.”[7] In actuality, “[t]he ownership of the cultural property remains regulated by civil law, other domestic law[,] and private international law.” [8] Thus, the UHC Agreement creates a framework and vocabulary that allows countries to create their own agreements on how to properly divide the finds of underwater cultural heritage.[9]

Spain, which is a signatory to the UCH Agreement[10], demanded the return of the San Jose and its cargo on the grounds that it is historically known to be property of Spain and, therefore, should be returned to its owner.[11] Although Colombia is not a signatory to the UCH Agreement, Spain’s claim is not completely ludicrous: Spain won two cases brought by United States salvage companies for the bounty of two different ships (the Mercedes and the La Galga) under United States law, a country that is not a signatory to the UCH Agreement. [12] However, the wins were due to the United States federal courts dismissing the cases in Spain’s favor because the courts lacked subject matter jurisdiction under United States Federal law.[13] By contrast, Colombia law grants itself sole jurisdiction over the ship and its cargo, a fact even the United States federal courts recognized and deferred jurisdiction to when making its decision in the case Sea Search Armada involving Colombia.[14]

The Law of the Sea and Colombia’s Claim

 The conflict of the San Jose lies in the fact that, according to Colombian laws, any shipwreck and its cargo found on Colombian shores are property of the Colombian government. [15] In short, Colombia bases its claim to the San Jose solely on the fact that the ship was found within the territorial water area of its shores. Colombia highlights this fact and grounds its argument in the United Nations Convention on the Law of the Sea (“Law of the Sea”).  

This fact is of important significance because, under the Law of the Sea, which is the agreement that both Colombia and Spain are signatories, “the sovereignty of the coastal state extends[] beyond its land territory and into internal waters . . . describe[d] as territorial waters.”[16] Consequently, since the shipwreck was found within Colombia’s territorial waters, Colombia’s law would govern the ownership of the shipwreck and its cargo, giving it the ownership rights to the San Jose.

Conclusion

Although Spain appears to utilize the most accurate and relevant United Nations agreement to support its claim to the San Jose, Colombia created its own framework to ensure that it is the sole beneficiary of any shipwreck found within its borders. Thus, the question of “who owns the San Jose” remains unanswered.  

[1] Ole Varmer, Closing the Gaps in the Law Protecting Underwater Cultural Heritage on the Outer Continental Shelf, 33 Stan. Envtl. L.J 251, 257 (2014).

[2] Corey Charlton, Hands Off Our Treasure! Spain Says It Holds the Rights to Galleon the San Jose- and its $1bn worth of gold coins- Found in Colombian Waters 300 years After It Sank, Daily Mail (Dec. 8, 2015),  http://www.dailymail.co.uk/news/article-3351250/Hands-treasure-Spain-says-holds-rights-galleon-San-Jose-1bn-worth-gold-coins-Colombian-waters-300-years-sank.html; Colombia Says Treasure-Laden San Jose Galleon Found,  BBC (Dec. 5, 2015), http://www.bbc.com/news/world-latin-america-35014600; Spanish galleon San Jose full of sunken treasure discovered off Colombia, CBC News (Dec. 7, 2015), http://www.cbc.ca/news/technology/galleon-san-jose-1.3354114.

[3] Id. 

[4]  Convention on the Protection of the Underwater Cultural Heritage, Nov. 2, 2001, 41 ILM 40

[5] Id.; see also Underwater Cultural Heritage, UNESCO, http://www.unesco.org/new/en/culture/themes/underwater-cultural-heritage/frequently-asked-questions/ (last visited Dec. 23, 2015) [hereinafter UCH FAQ]

[6] UHC Agreement, supra note iii, art 1,  ¶ 1(a)(ii).

[7] UHC FAQ, supra note 5 (emphasis added).

[8] Id.

[9] See generally UHC Agreement; see also UHC FAQ, supra note 5.

[10] Convention on the Protection of the Underwater Cultural Heritage, UNESCO, http://www.unesco.org/eri/la/convention.asp?KO=13520&language=E#1 (last visited Dec. 23, 2015).

[11] BBC, supra note 2.

[12] See Odyssey Marine Expl., Inc. v. Unidentified, Shipwrecked Vessel, 675 F. Supp. 2d 1126 (M.D. Fla. 2009) and Sea Search Armada v. Republic of Colom., 821 F. Supp. 2d 268 (D.D.C. 2011).

[13] See Odyssey Marine Expl., Inc., 675 F. Supp. 2d 1126 and Sea Search Armada v. Republic of Colom., 821 F. Supp. 2d 268. 

[14] Sea Search Armada v. Republic of Colom., 821 F. Supp. 2d at 270.

[15]“The Colombian Parliament then enacted a law giving Colombia all rights to the treasure from the shipwreck site.” Sea Search Armada, 821 F. Supp. 2d at 270.

[16] United Nations Convention on the Law of the Sea, Dec. 10, 1982, 1833 UNTS 3; 21 ILM 1261 (1982).