Shipwrecks have fascinated humanity for centuries, carrying tales of lost treasures. The UNESCO publication of its Convention on the Protection of the Underwater Cultural Heritage (2001 UNESCO Convention) estimates that there are over 3 million shipwrecks spread across ocean floors worldwide (UNESCO, 2007) containing weapons, jewels, and many cultural and historical artefacts. Modern technological progress now makes it possible for us to reach the shipwrecks, discover events of past eras, and historical maritime trade, shipbuilding, and more.
The discovery of a Spanish galleon “San José” (now known as the ‘Holy Grail of Shipwrecks’ with $17 billion in treasure) just south of Cartagena, Colombia, however, sparked a heated global dispute over ownership. The salvage of historical sunken ships involves many aspects: scientific, political, financial, informational, and organizational. Forming a series of complex tasks which need a reliable legal basis. Are finders keepers or should it be something else?
Traditional Doctrines
There are two types of admiralty laws which allow salvors to claim what they find: the law of salvage and the law of finds. The concept of salvage law focuses on vessels deemed “in peril”. Salvage law assumes the presence of an owner and entitles the salvor to compensation as an award to the risk involved through the recovery process. Under salvage law, it is presumed that the vessel has not been abandoned.
The law of finders provides a greater incentive to pursue wrecks as finders are entitled to the discovered shipwreck. It applies to shipwrecks with historical rather than monetary value. Under finders’ law, the salvaged property must be abandoned or unowned.
The two laws are governed by an intricate web of international and national laws through which the fate of found shipwrecks is determined. Among the key international legal instruments are the United Nations Convention on the Law of the Sea (UNCLOS), the UNESCO Convention on the Protection of the Underwater Cultural Heritage, and the 1989 International Convention on Salvage.
United Nations Convention on the Law of the Sea (UNCLOS)
UNCLOS 82 attempted to tackle various maritime law matters, including ownership of ancient shipwrecks and act as one of the most important international agreements governing the world’s oceans.
Article 303 of UNCLOS establishes the principle that all states must act to protect archaeological and historical objects found at sea. Article 149 emphasises the preservation or disposal of archaeological and historical objects for the benefit of mankind, taking into account the preferential rights of the state or country of origin, cultural origin, or historical and archaeological origin.
UNESCO Convention on the Protection of the Underwater Cultural Heritage
2001 UNESCO Convention on the Protection of the Underwater Cultural Heritage commits to enhance the preservation of underwater cultural heritage. It emphasises the need for preservation over profit and obligated ratifying states to conduct scientific research and foreground preservation as the preferred option. The Convention also prohibits commercial exploitation of underwater cultural heritage and encourages states to share information related to sunken wrecks. Signatory states must align their national laws with the UNESCO guidelines. However, enforcement remains challenging, especially when wrecks are found in areas not governed by member countries.
The 1989 International Convention on Salvage
The International Convention on Salvage promulgated by the International Maritime Organisation (IMO) to update International Maritime law, outlines the rights of salvors to recover shipwrecks in international waters. The convention grants salvors the right to compensation for their efforts based on the value of the wreck and the risks involved in the salvage operation. Yet, this compensation does not grant ownership of the wreck itself.
National laws represented by domestic legislation play a significant role in shipwreck recovery. For instance, in the United States, the Abandoned Shipwreck Act grants the federal government ownership of certain shipwrecks found in the U.S.
The San José Case
The discovery of the San José galleon sparked a complex legal battle, primarily between Colombia and American company Sea Search Armada (SSA), who claimed prior discovery and salvage rights. This legal wrangling involves disputes over maritime law, salvage rights, and national patrimony, with SSA pursuing legal action while Colombia maintains its sovereign claim. The legal battles continue to be fought through international courts.
Currently, Colombia is moving forward with plans for archaeological exploration and recovery, emphasising the site’s historical significance and intending to display recovered artifacts in a museum.
