02 Jan Spain’s Sunken Warships and the Underwater Heritage of Latin America
During colonial times, the Spanish empire lost around 1500 warships carrying priceless riches from the gold and silver mines of the Andes and the Sierra Madre. Under international law, these sunken warships are immune from state jurisdiction and generally remain state property even after sinking. In the past decade, international law has sought to regulate their preservation and salvaging, both at UNESCO and the International Law Institute. At the same time, however, these efforts seem to have been unable to satisfy the expectations of Latin American states; some of which, particularly Peru and Colombia, have begun to use international law to claim property rights over what they consider their cultural heritage, not Spain’s.
The main international instrument regulating these wreckages is the 2001 UNESCO Convention on the Protection of the Underwater Cultural Heritage. The Convention regulates the relationship between the state that finds the wreckage and the states that have an interest in it, including the owner of the ship (the “flag state”). This Convention has not been ratified by a majority of states, and its status as customary law remains highly doubtful. The Convention, however, does offer some guidance as to what international law expects of states in these situations. Overall, the Convention places considerable emphasis on the need for “coordination”.
For instance, in the exclusive economic zone and continental shelf, the coastal state must coordinate with all those that declare a “verifiable link, especially a cultural, historical or archaeological link, to the underwater cultural heritage concerned”, adding that “no activity directed at State vessels and aircraft shall be conducted without the agreement of the flag State and the collaboration of the Coordinating State”. In the marine seabed (the “Area”, as per UNCLOS), the “coordinating state” shall not “undertake or authorize activities directed at State vessels and aircraft in the Area without the consent of the flag State”.
Coordination, however, does not seem to be enough to satisfy the demands of Latin American states. In 2007, in Odyssey Marine Exploration, Inc. v. The Unidentified Shipwrecked Vessel, Peru claimed ownership over the treasures inside the wreckage of the Nuestra Señora de las Mercedes, a Spanish galleon that sunk in 1804 while transporting riches from the Peruvian port of Callao, to Spain. For Peru, there was a key difference between the ship itself (clearly the property of Spain, the flag state) and its cargo of priceless gold coins, which belonged to Peru – the “country of origin”. In Peru’s terms:
“Spain uses the term ‘Spanish’ as if that term has same meaning today as it did in 1804 (…). When the treasure was lost, Peru and its citizens were ‘Spanish,’ but to call the treasure here ‘Spanish’ ignores the fact that the Spanish Empire no longer extends to the Americas. Peru is now an independent and equally sovereign nation, and in this case, Peru has greater rights than Spain to treasure extracted from Peruvian territory by (generally the forced labor of) Peruvians”.
Peru argued that it should be considered the “country of origin” under the terms of UNCLOS article 149. According to it:
“All objects of an archaeological and historical nature found in the Area shall be preserved or disposed of for the benefit of mankind as a whole, particular regard being paid to the preferential rights of the State or country of origin, or the State of cultural origin, or the State of historical and archaeological origin”.
Peru based its claim on the premise that it had succeeded Spain as the owner of the cargo. It explained that practice on state succession showed that in absence of agreement, property must be distributed in equitable proportions, and in this case it would be manifestly inequitable to allow Spain to keep possession of the Mercedes’ cargo, claiming:
“Under modern notions of international law, Spain’s conquest of Peru, the taking of its natural resources, and its forced labor of the indigenous populations are criminal. Equity should not accept furthering those wrongs by assisting Spain’s acquisition of even more resources from Peru”.
Spain objected, inter alia, arguing that it (and not Peru) was the “country of origin”. “[W]hen the Mercedes sailed from El Callao” – it stated – “everything placed on board there ‘originated’ in what was part of Spain”.
Ultimately, the US 11th Circuit Court of Appeals upheld Spain’s immunity and dismissed Peru’s case. The coins are now exhibited in the Arqua Museum of Spain, more than 9 thousand kilometers away from Peru and its people. Peru has not since engaged Spain any further with regards to the treasure, presumably, because diplomatic negotiations are not likely to produce an acceptable outcome. In 2007, Spain promulgated a National Plan for the Protection of Subaquatic Cultural Patrimony, which, among other things, requires the Spanish government to defend these wreckages, calling them the historical heritage of Spain and reserving for itself all and any authority with regards to their archaeological exploration.
After the Odyssey case, in 2013, Colombia issued Law 1675, claiming ownership over all sunk archaeological items off is coasts, including (quite purposefully) sunk Spanish galleons. Soon after, in 2015, Colombia found and claimed ownership over the San Jose, a Spanish galleon sunk in 1708, “in Colombian waters”, off the port of Cartagena. Spain has already objected Colombia’s ownership claim and has insisted on negotiations. Both states’ positions however seem incompatible. Colombia wishes to salvage the San Jose’s treasure for archaeological research and exhibition, whereas Spain considers the site a war grave under international humanitarian law and wishes to maintain its remains intact.
As it stands today, international instruments do not seem particularly favourable to the Latin American position, especially with regards to the legal status of the cargo and the applicable rules of state succession. Articles 5 of the abovementioned ILI’s Resolution, for instance, simply states that “cargo owned by the flag State remains the property of that State”; that “cargo owned by other States remains the property of those States”; and that “the sinking of a ship has no effect on property rights concerning cargo on board”. Article 11, however, notes that “the provisions of this Resolution are without prejudice to the principles and rules of international law regarding succession of States”. This is particularly unhelpful, considering that Peru’s argument was precisely that equity-based state succession laws would lead to a recognition that ownership of the cargo changed through time. In addition, Article 10 also states that “without prejudice to Article 149 of [UNCLOS], wrecks of sunken State ships in the Area are under the exclusive jurisdiction of the flag State”. How do the preferential rights of the state of cultural or archaeological origin (as per UNCLOS) interact with the exclusive jurisdiction of the flag state (under the Resolution) is left unsaid. These rules, therefore, paint a complicated outlook for Latin American states wishing for clear rules in their interactions with Spain.
Considering the lack of clarity offered by existing instruments, solutions to the problem of Spain’s sunken warships will have to be produced on an ad hoc basis, through good faith and mutual understanding. Any outcome should keep in mind, however, that the unwillingness of former colonial empires to discuss full repatriation of cultural heritage is causing increased controversy in today’s world. European nations need to take meaningful steps to atone for centuries of colonial exploitation. France’s recent decision to begin efforts to repatriate stolen African art is, in fact, a very positive development in this direction. Spain should follow suit, recognizing that the riches inside its sunken warships should, whenever possible, be returned to the nations where they were extracted from.