By Christopher Mirasola
June 8, 1708. It is almost eight years after King Louis XIV installed his grandson Philip on the Spanish throne and Europe is only halfway through the War of Spanish Succession, a conflict pitting the English, Dutch, and Austrians against Louis XIV and Philip. Sixteen miles off the coast of Cartagena (a port city in present-day Colombia) Commodore Charles Wager pursues and sinks the San José, a Spanish galleon with a 600-person crew that is ferrying the gold, silver, and jewels Spain and France need to fund their war effort. Most of San José’s crew die in this battle and the ship’s cargo, estimated to currently value $4 to $17 billion, is lost.
December 5, 2015. Colombian President Juan Santos declares that the San José was discovered in an undisclosed location and announces plans for a museum to display its cargo, touching off a new international dispute. Sea Search Armada (SSA), an American salvage company that had previously entered into an agreement, later renounced by Colombia, to split any recoverable cargo, reiterates its claim to the San José. Days later the Spanish Foreign Minister declares that Spain retains sovereign rights to the San José and pledges to ‘”defend our interests.”
All of which begs the question: 307 years after the ship was destroyed, who now owns the San José? Notwithstanding Colombian legislation, an analysis of relevant treaties and state practice shows that Spain has the better claim since sunken warships remain the property of the flag State. I focus on the dispute between Colombia and Spain because SSA’s case is based on its contract with Colombia, which depends on whether Colombia has ownership over the ship in the first place.
The Colombian Perspective
In 2013 President Santos signed legislation declaring that any culturally important manmade objects (including sunken ships) submerged in waters under Colombian jurisdiction are Colombian property. This law was in fact designed to assert ownership over Spanish wrecks like the San José given Colombia’s colonial history as a source of the empire’s gold, silver, and jewels. This domestic legislation, however, contradicts an emerging consensus in customary international law.
An Emerging Consensus in International Law
Usually we would begin our analysis by looking at relevant treaties. However, neither the United Nations Convention on the Law of the Sea (UNCLOS) nor the Convention on the Protection of Underwater Cultural Heritage (UNESCO Convention) is particularly informative. Under UNCLOS Article 149, sunken cultural objects should be preserved “for the benefit of all mankind” while “preferential rights” are reserved for “the State or country of origin, or the State of cultural origin, or the State of historical and archaeological origin.” When applying this provision in this case, just about any successor country to Spain’s South American Empire could claim preferential rights. Article 303 is no more useful, stating generally that the rights of “identifiable owners” should be preserved. Similarly, the UNESCO Convention does not define a State’s rights to non-commercial vessels or aircraft. Article 7, however, does seem to favor the rights of coastal States by saying that they only “should” inform the flag State before excavating a wreck. Even this provision, however, is not useful for the San José because Colombia is not a signatory to UNCLOS or the UNESCO Convention. Instead, we must look to what is required in customary international law (obligations created by a consistent pattern of State action that is followed due to a sense of legal obligation). Since only 51 countries have ratified the UNESCO Convention (notably excluding the United States, United Kingdom, Russia, Japan and other important maritime powers), we cannot say that its provisions should be considered as part of customary international law.
Scholars have shown, however, a consistent pattern of countries requiring the consent of flag States before disturbing their sunken warships irrespective of where these ships are found. A report from the Institute of International Law, for example, identified 16 case studies concerning ownership of sunken warships. In 11 cases the parties agreed that the country originally owning the warship retained its rights despite the fact that it was located in waters under another country’s jurisdiction. The other cases, while differing in details, suggest a similar respect for flag State rights. For example, in two of the five remaining cases the countries formally agreed that the coastal State must report any intended activity implicating the sunken ship. In another case Germany and France did not address ownership and instead agreed to not excavate the sunken warship at all. Even the CIA’s covert recovery of a sunken Soviet ship (the Glomar Explorer) without the USSR’s permission suggests that the United States had misgivings about legality of not informing a flag State. Only a 1976 case in which the Florida District Court granted a private salvage company rights to a Spanish galleon contradicts this consensus. Even this case, however, is no longer useful in revealing State practice since, in 2001, the United States Supreme Court ruled that another salvage company could not claim two Spanish galleons it found off the Virginia coast.
Furthermore, France, Germany, Japan, Russia, Spain, the United Kingdom, and the United States have all officially stated that flag States can only lose sovereignty over sunken warships by specifically and formally relinquishing ownership. This past summer, the Institute of International Law recommended that States codify this understanding of customary international law in a draft convention stating that “sunken State ships are immune from the jurisdiction of any State other than the flag State.” A number of noted maritime law scholars, including J. Ashley Roach, Mariano Aznar-Gómez, Jason Harris, and Miguel Garcia-Revillo and Miguel Zamora, concur that warships remain under the exclusive jurisdiction of the flag State. This legal obligation is supported by the traditional respect given to the graves of fallen sailors. As almost all of the San José’s 600 crew died during Wager’s attack, Colombia has a special obligation to respect this site as a Spanish war grave.
What to do with the San José’s cargo
While customary international law is relatively clear in granting Spanish ownership to the San José, it is less certain about what should be done with its cargo. In the past, for example, Peru claimed “patrimonial” ownership of cargo found on the Spanish galleon Mercedes. A similar argument is made today regarding the San José’s cargo as much of it was forcefully extracted from the Incas in what is modern-day Peru. Another Peruvian newspaper contends that modern-day Spain is not the sole successor to the Catholic monarchy’s South American Empire and therefore should not be the only owner of the San José’s cargo. Indeed, the Institute of International Law’s draft convention would allow for such a division in property rights between the ship and its cargo. By the same token, however, the draft convention asserts that even if the cargo is not property of the flag State, it cannot be removed without the flag State’s permission. Additionally, the United States Court of Appeals ruled in the Mercedes case that, notwithstanding Peru’s claim of patrimonial entitlement, respect for Spain’s sovereign immunity over the ship required that its cargo also be considered Spanish.
Notwithstanding this disagreement, there is substantial room for a cooperative solution that respects Colombian and Peruvian interests while adhering to international law. Such an agreement would have to stipulate Spanish ownership over the San José and likely preserve much of the wreck untouched as a war grave. Spain will likely be unwilling to agree with Colombia’s plan to create a museum housing the San José’s cargo since underwater preservation is best to prevent sunken artifacts from degrading. However, both sides could agree to create a historical preservation zone around the wreck under Colombian jurisdiction either in perpetuity or under a long-term lease. France and the United States, for example, came to similar agreements for wrecks discovered off the coasts of both countries.
Nearly 600 people died over 300 years ago to protect the San José and support Spain’s far-flung empire. Today, it is the international community’s duty to reach an agreement that respects the lives of those sailors, the San José’s shared history, and established international law.
Christopher Mirasola is a 2018 J.D./M.P.P. candidate at Harvard Law School and Harvard Kennedy School. He is an Executive Symposium Editor of the Harvard International Law Journal.