Shipwrecks, Ancient History, and the “Inhospitable Sea:” Ownership Implications for Discoveries in the Black Sea

By Tia Rowe

In October 2018, a team of scientists, marine archeologists, and surveyors discovered what is believed to be the world’s oldest intact shipwreck.[1] The ship is thought to be from Ancient Greece and to be over 2,400 years old.[2] Notably, the ship resembles the vessel pictured on the “Siren Vase.”[3] The Vase depicts a scene in which Odysseus is tied to the mast of his ship.[4] This find is incredibly valuable because it may contain more ancient artifacts within its hold and could inform researchers about ancient seafaring and shipbuilding.[5] This shipwreck was found as part of a larger expedition that led to the discovery of over 60 other shipwrecks in the Black Sea.[6] The team also discovered “Roman trading ships and a 17th Century Cossack trading fleet.”[7] These invaluable discoveries raise the question of who owns or has rights to these shipwrecks; this post aims to answer that question by analyzing another shipwreck and looking at two international law schemes that deal with maritime cultural heritage.

            A similar question arose when the San Jose shipwreck was found off the coast of Colombia.[8] The San Jose shipwreck is thought to be carrying somewhere between $1 billion and $17 billion worth of treasure.[9] The Colombian government has claimed ownership over the wreck because it argues that the wreck was found in Colombian “territorial waters.”[10] However, Spain has also claimed ownership because San Jose was a Spanish ship that was sunk by the British in 1708.[11] Initially, courts would look to treaties governing the issue of shipwrecks, but Colombia is not a party to the United Nations treaties that cover underwater cultural heritage.[12] Thus, courts can look to the international custom rule favoring “flag states,” which allows “the country whose flag is on the sunken ship [to] only lose[] its right to what's onboard if it formally relinquishes that right.”[13] Additionally, the type of ship matters in ownership claims because of the custom of “sovereign immunity.”[14] Sovereign immunity “refers to a specific category of ships that are immune from legal proceedings by another state. Warships and other government ships operated for non-commercial purposes enjoy sovereign immunity.”[15] The dispute over the San Jose wreck is still ongoing, but it illustrates two main tenants of international law regarding underwater cultural heritage: treaty law and international custom law.[16]

The countries that border the Black Sea are Ukraine, Russia, Georgia, Turkey, Bulgaria, and Romania.[17] Out of those countries, only the Ukraine, Bulgaria, and Romania are parties to the UNESCO Convention on the Protection of the Underwater Cultural Heritage, which has a provision regarding shipwreck ownership.[18] Thus, the UNESCO Convention is unlikely to be applicable to any shipwreck claims made in the Black Sea, unless the dispute is among those countries.[19] There is an agreement between the aforementioned countries, and others in the region, that commits to working toward a prosperous Black Sea region.[20] The Black Sea Economic Cooperation does outline cultural goals for the region, but it does not explicitly explain what a country should do to claim or defend a shipwreck found outside of its territorial waters.[21]

If there is not a clear international agreement, which there does not appear to be for the countries bordering the Black Sea, then disputes can be solved using international customs.[22] As previously mentioned, the state whose flag is on the ship has ownership rights over the shipwreck.[23] This is a problematic approach to the oldest intact shipwreck that was recently found in the Black Sea because it is unclear exactly what kind of ship has been found and what flag the ship was sailing under.[24] While the ship is initially believed to be an ancient Greek trading ship,[25] the question remains whether the ship was flying under a particular state flag or whether this concept even had the same meaning 2,400 years ago.

This question may never need to be answered because the ship may never leave the bottom of the Black Sea. While researchers are concerned with the stability of the ship, one of the primary issues with doing further research on the shipwreck is the lack of funding.[26] Thus, an alternative form of ownership determination is giving rights to whichever government is able to fund the research into the shipwreck. This approach could be problematic because it does not adhere to typical ownership systems, but one must ask what should be more highly valued: a country’s claim to an ancient treasure or the knowledge gained from research of that treasure? Regardless of the answer, this shipwreck will provide invaluable knowledge by presenting a new legal question that is sure to become more relevant as underwater technology becomes more advanced and the “inhospitable sea” reveals more of its secrets.

[1] Kevin Rawlinson, World’s oldest intact shipwreck discovered in Black Sea, The Guardian (Oct. 22, 2018), https://www.theguardian.com/science/2018/oct/23/oldest-intact-shipwreck-thought-to-be-ancient-greek-discovered-at-bottom-of-black-sea.  

[2] Id.

[3] Id.

[4] Id.

[5] Id.; Shipwreck found in Black Sea is ‘world’s oldest intact’, BBC (Oct. 23, 2018), https://www.bbc.com/news/world-europe-45951132.

[6] Rawlinson, supra note 1.

[7] Shipwreck found in Black Sea is ‘world’s oldest intact’, supra note 4.

[8] See Willie Drye, Fight for 'World's Richest Shipwreck' Heats Up, Nat’l Geographic (July 20, 2018), https://www.nationalgeographic.com/science/2018/07/news-san-jose-shipwreck-colombia-salvage/.

[9] Chris Opfer, Who Owns the $17 Billion San Jose Loot?, howstuffworks (Jun. 14, 2018), https://history.howstuffworks.com/historical-events/who-owns-17-billion-dollar-san-jose-loot.htm.

[10] Id.

[11] Spain says it has rights to Colombian treasure ship, BBC (Dec. 08, 2015), https://www.bbc.com/news/world-latin-america-35036121.

[12] Opfer, supra note 8.

[13] Id.

[14] Shipwrecks: Who owns the treasure hidden under the sea?, BBC (June 04, 2018), https://www.bbc.com/news/world-44302476.

[15] Id.

[16] See Opfer, supra note 8.; see also Christopher Mirasola, Swimming Against the Tide: Colombia’s claim to a Shipwreck and Sunken Treasure, Harv. Int’l L.J. (Jan. 26, 2018), http://www.harvardilj.org/2016/01/swimming-against-the-tide-colombias-claim-to-a-shipwreck-and-sunken-treasure/.

[17] Aleksey Nilovich Kosarev, Vladimir Petrovich Goncharov, & Luch Mikhaylovich Fomin, Black Sea, Encyclopaedia Britannica, https://www.britannica.com/place/Black-Sea (last updated Sep. 21, 2018).

[18] UNESCO, Convention on the Protection of the Underwater Cultural Heritage, States, (Nov. 02, 2001), available at: http://www.unesco.org/eri/la/convention.asp?KO=13520&language=E&order=alpha.  

[19] See generally id.

[20] See Organization of the Black Sea Economic Cooperation, BSEC, http://www.bsec-organization.org (last visited Nov. 04, 2018).

[21] Culture, BSEC, http://www.bsec-organization.org/areas-of-cooperation/culture (last visited Nov. 04, 2018).

[22] See Mirasola, supra note 14.

[23] Opfer, supra note 8.

[24] See generally Rawlinson, supra note 1.

[25] Id.

[26] Sarah Pruitt, This Ancient Greek Vessel is the World’s Oldest Intact Shipwreck, Hist. (Oct. 23. 2018), https://www.history.com/news/oldest-shipwreck-discovery-ancient-greece.