Since the impressive treasure of more than 20,000 million gold coins that sank with the Spanish galleon ‘San José’ was revealed, world interest has focused on resolving the coordinates of the wreck and answering who owns the million-dollar find. The same interest occurs with another hundred ships that were shipwrecked with gold, silver and precious stones of incalculable value when carrying out the race to the Indies between the 15th and 18th centuries and that have been found recently.
Data from the Spanish Navy indicate that there have been 1,580 shipwrecks of Spanish vessels along the history. Most of them would occur during the Indies race and the greatest presence of wrecks would be on the coasts of the Iberian Peninsula and the Caribbean. With these shipwrecks, thousands of tons of gold and silver would be found in the depths of the sea, which raises the question: Who owns all the treasure found under the sea?
Between the 15th and 18th centuries, the Bay of Cádiz, the Port of Santa María, or Galicia were established as commercial epicenters where the so-called Race to the Indies took place. It is in these areas where the largest number of shipwrecked ships are recorded (596) in that period of history, many of them with treasures of incalculable value. However, there are other international maritime zones, where a large number of wrecks of the Indies fleet have been found, which have generated a strong interest of some countries in rescuing their treasures.
Cases such as the San José Galleon itself, found in an area near Colombian waters, or the 39 shipwrecks of Spanish vessels from Tierra Firme found in the southeast of Mexico, specifically in the Alacranes Reef, show the political, cultural and economic interest that exists behind part of the countries involved, either by origin, discovery or by private treasure hunting companies.
Speculation, agreements and laws
To clarify the ownership of these wrecks and their treasures, the BBC explains that there are international agreements whose rules govern parts of the treasure hunting process. However, the decision of who has the right to keep the ship’s valuable contents tends to be made between countries under “international law”, explained to the media Robert Mackintoshlawyer and archaeologist at the University of Southampton, England.
“It is a very complex picture, since many states and people may have varied and often competing interests in the shipwreck, interests that have their origins and different sets of laws“said the expert. For example, the original owner of the vessel has a viable right of ownership. But that right can be replaced by the country that has claim to the territorial waters where the wrecked vessel was discovered, the media adds.
In this context, marine archaeologist Peter Campbell told the BBC that “the ocean is the world’s largest museum, and hunting for treasure in sunken ships is a huge business.”
“Speculation about the value of a shipwreck’s contents can run high even before the items are recovered. But often, the operational costs of archaeological investigation can turn out to be greater than the value of the wreck itself“said Campbell.
What does the law say?
According to a document of the convention of the UNESCO 2001 on underwater cultural heritage includes rules that help to carry out appropriate practices for underwater excavations and guides that stipulate what the certificates of the people who participate in the conservation and management of the site should be. However, no state, organization, or private entity has contacted the international entity to establish a resolution of shipwreck claims.
A country, such as Spain, can claim possession over a shipwreck if, in the first place, he owned the boat. Even if the ship has sunk and been abandoned for hundreds of years, the original owner can still claim possession rights. Along these lines, there have also been cases in which a country transfers possession of a vessel to another country so that the vessel can be displayed in a museum.
However, the question of possession can be complicated depending on the location of the shipwreck, if it lies in the territorial waters of another state. Under international law, a country has absolute sovereignty over these waters so it can essentially do whatever it wants in terms of taking possession, Mackintosh said. There are more legal ramifications if the wreck is in international waters.
When a vessel is discovered, the country where the vessel was registered can give rise to something called sovereign immunity (in addition to possession claims).
This refers to a specific category of vessels that are immune from the legal processes of another state. Warships and other government vessels operated for non-commercial purposes enjoy sovereign immunity, Mackintosh told the outlet.
The rights of Spain and underwater heritage
It seems that by saying “Spanish” galleons it is completely assumed that they are from Spain. Or at least that is how our country has referred to the discovery of the San José galleon.
In 2015, with the announcement of the discovery of the remains of the wreck, the Secretary of State for Culture at the time, José María Lasalle, spoke out on the matter. “The Spanish government is going to request precise information about the application of the legislation of your country on which the intervention on a Spanish wreck is based,” said the secretary.
“We are analyzing what actions can be taken in defense of what we understand is the underwater heritage and respect for UNESCO conventions to which our country has been committed for many years,” said Lasalle.
However, the Minister of Foreign Affairs of Spain at that time, José Manuel García-Margallo, went further and stated that “The galleon San José is a ship of state”. “It is a state ship, a war ship, and not private ships, so there is ownership of the State where the flag of the ship is flagged,” said García-Margallo.
“There is no question of elucidating in a ruling who is the legitimate owner of the underwater heritage found because, according to the principle of sovereign immunity, as long as a State does not expressly abandon its underwater public heritagewill continue to be its owner,” Spanish lawyer Carlos Pérez Vaquero told the BBC.
In the latest statements made in 2019 on this historical item, the Government reiterated the well-known Spanish position that defends that, according to international law commonly accepted by all nations, the “San José” was a state ship, its remains are considered of “underwater grave” and cannot be subject to commercial exploitation.
Rescue of the wreck advances
The decision of the Colombian Minister of Culture caused a global stir, Juan David Correa to begin the rescue of the famous, and controversial, galleon San José. And both our country, the United States and indigenous nations want a piece of the pie of the treasure of 20,000 million gold coins that was shipwrecked more than three centuries ago.
Although the real interest is in the galleon’s treasure, Correa stated that the extraction of it will be for “cultural and technical research” of the ship and that the treasure operation “will not be for this year.”
“Last Friday, after eight days of research, this wonderful team of scientists returned to Cartagena after a attentive observation and conversation about the wreck of the Galeón San José and its possible destiny as a Colombian biocultural heritage. @mincultura”, Correa noted in his X account at the beginning of the month.
In the minister’s previous words, “this is a kind of exploration, as if we were going to space to be able to recover two, three, four materials to be able to understand what happens to those objects when they appear on the surface, in the atmosphere after having been submerged down there for three centuries. The next investigation will be led by the General Maritime Directorate (Dimar) and the National Navy. The goal is to extract some units from the archaeological wreck to investigate its cultural and technical dimensions.”
For this “investigative” operation, the Colombian government will spend 4.2 million euros on the project and the idea is to work on a CONPES document (National Council for Economic and Social Policy) so that resources are assured for the next ten years.
