Tuesday, June 16, 2009

Maritime Cultural Property and Treasure Hunting

Archaeological sites in international waters are numerous and still largely untouched. With the development of sophisticated technology for the search and recovery of shipwrecks on the ocean floor, however, issues of ownership, preservation, and cultural property rights have achieved increasing prominance. In particular, after the discovery of RMS Titanic in 1985 the debate among marine archaeologists, cultural rights proponents and commercial salvage companies about treasure hunting in international waters has intensified. Although both the 1982 United Nations Convention on the Law of the Sea and the 2001 UNESCO Convention on the Protection of the Underwater Cultural Heritage promote the preservation of shipwrecks, the debate about which shipwrecks can be explored and what cargo can be retrieved continues, often leading to protracted legal battles.

A clear illustration of this is the case of Odyssey Marine Exploration, Inc. v. Unidentified, Shipwrecked Vessel (No. 8:07-CV-00616, M.D. Fla., filed 9 April, 2007). In his report on the case [PDF], issued last week, US Judge Mark A. Pizzo concluded that an estimated $500 million worth of silver and gold coins and other artifacts removed by the salvage company Odyssey Marine Exploration from a colonial-era shipwreck in the Atlantic belonged to a sunken Spanish warship and should be returned to Spain.

The legal dispute started back in May of 2007 when Odyssey discovered the shipwrecked treasure in international waters about 100 miles west of the Straits of Gibraltar at a site they code-named “Black Swan.” Soon after the discovery Spain filed legal claims contending the treasure was removed from the Spanish frigate Nuestra Senora de las Mercedes and demanded the return of all the items brought up from the site by Odyssey.

In August 2008, also Peru, a former Spanish colony, filed a conditional claim which stated that the treasure may be part of its patrimony and that it is entitled to any property that originated in Peru and was produced by its people.

The historical documents presented in the case show that the Mercedes, carrying treasure back from Peru, was sunk in combat against the British on the 5th of October 1804, off the coast of southern Portugal, resulting in a war between the two countries. Spain asserted that the vessel and its cargo are part of its cultural heritage, not to mention being the grave site of more than 250 Spanish sailors and citizens who died when the frigate exploded and sank. The Spanish government also defended the right of sovereign immunity that asserts the right of a nation to protect its historic sites and heritage, including sunken ships, from any kind of disturbance or plundering by treasure hunters.

According to Odyssey the treasure had been found in international waters and therefore beyond the legal jurisdiction of any one country and had been legally retrieved. It defended its claim that Spain cannot prove the treasure was removed from the Mercedes.

In his report Judge Pizzo fully accepted the arguments of the Spanish government and stated that the shipwreck is, in fact, the Mercedes and so the cargo is covered by sovereign immunity and may not be salvaged and kept by others. The Foreign Sovereign Immunities Act grants immunity to a foreign state’s property in the US from being taken and none of the exceptions Odyssey offered to a federal law applied, he said.

In his conclusion Judge Pizzo stated: “More than two hundred years have passed since the Mercedes exploded. Her place of rest and all those who perished with her that fateful day remained undisturbed for the centuries – until recently. International law recognizes the solemnity of their memorial, and Spain’s sovereign interests in preserving it. ... This Court’s adherence to those principles promotes reciprocal respect for our nation’s dead at sea. … It is this comity of interests and mutual respect among nations, whether expressed as the jus gentium (an impetus to exercise judicial authority) or as sovereign immunity (an impetus for refraining from the exercise of judicial authority), that warrants granting Spain’s motions to vacate the Mercedes’s arrest and to dismiss Odyssey’s amended complaint.”

Judge Pizzo recommended that US District Judge Steven D. Merryday, who will issue a final order, drop the case as the US lacks jurisdiction over it and order the property returned to Spain.

The recommendation marks the latest step in the lengthy battle between Odyssey and the government of Spain, and in view of its consequences for treasure hunting in international waters the end might not yet be in sight. Both Odyssey and the government of Peru announced that they would contest the recommendation.

On this issue, see, e.g., the recent article by Cahal Milmo: Why is there a storm brewing over the right to plunder shipwrecks?, in The Independent, 9 June 2009. See also the blog posted by Dan on Archaeopop: International Booty Battle.

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