Showdown on the Strait of Gibraltar

The dispute between Spain and Odyssey Marine has taken an interesting turn. A Spanish court has ordered the interception of two of Odyssey’s vessels if they decide to leave Gibraltar. The two ships are currently moored in Gibraltar. The Spanish Culture Minister Carmen Calvo said “International laws are behind us and if anything outside the law occurred it will have an answer, and what is ours will return to Spain.”

Odyssey has been secretive about where exactly they discovered the record shipwreck. Some have speculated that the wreck was in international waters off the coast of England. However Spain apparently feels otherwise, especially as Odyssey vessels were doing marine research in Spanish waters recently.

Over at Opinio Juris, Julian Ku has some interesting things to say, as does Anton Zeilinger in the comments. It seems the international boundaries of the territorial waters are very unclear. The maritime boundary between Spain and Gibraltar and between Spain and Morocco is unresolved. Even if Odyssey wanted to send its ships through the Suez canal, its not clear when they would be passing through Spanish waters.

The upshot is, states need to resolve their maritime boundaries. For a very interesting example of that problem, in the Adriatic, you can see an article my colleague Jernej Letnar Cernic has co-authored with Matej Avbelj, The Conundrum of the Piran Bay: Slovenia V. Croatia – The Case of Maritime Delimitation, forthcoming in the Journal of International Law & Policy, available on SSRN.

Spain is taking a very aggressive line with Odyssey marine. Perhaps they are attempting to get Odyssey to reveal the location of the wreck. Spain wants to be real sure the wreck was in international waters, or it may want to send its own salvage and archaeological teams to study the wreck. The dispute will certainly continue, and the forthcoming federal admiralty case in Florida is going to be very interesting.

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Spain Sues Odyssey Marine

A couple weeks ago I discussed Odyssey Marine’s discovery of what may have been the largest-ever shipwreck recovery. It seems now that Spain has decided to challenge Odyssey Marine’s title to the salvaged treasure. Julian Ku over at Opinio Juris has some thoughts, speculating that “Spain would either have to pay salvage costs if they retain title, or if the wreck is deemed abandoned, then its ‘finders/keepers.'”Here is an excerpt of the AP Story:

TAMPA, Fla. (AP) — The Spanish government has filed claims in U.S. federal court over a shipwreck that a Florida firm found laden with Colonial-era treasure, an attorney said Thursday.

If the vessel was Spanish or was removed from that country’s waters, any treasure would belong to Spain, said James Goold, an attorney representing the government.

“It’s a very well established principle under Spanish, U.S. and international law that a government such as the kingdom of Spain has not abandoned its sunken ships or sunken property, and that a company like Odyssey Marine Exploration may not conduct recovery operations without authorization by the government,” he said.

“The kingdom of Spain has not authorized any such operations by Odyssey, and by these legal actions it will see the return of any Spanish property Odyssey has recovered,” Goold said of the claims filed Wednesday.

Odyssey Marine Exploration Inc. CEO John Morris said in a statement Thursday that “such a move was anticipated by Odyssey and is considered normal in Admiralty cases.”

The company has previously said Odyssey would notify all claimants once it conclusively determined the ship’s identity. Odyssey said it was not found in Spanish territorial waters.

“If there is anything Spanish involved, they want to work with the Spanish government and be certain the Spanish government is completely satisfied with the result,” said Allen Von Spiegelfeld, Odyssey’s attorney in Tampa. “I don’t think the rights of the Spanish government would have been threatened.”

The company announced two weeks ago that it had discovered a shipwreck containing 500,000 gold and silver coins somewhere in the Atlantic Ocean. The Tampa-based company said the site was outside any country’s territorial waters but would not give the exact location or name of the ship.

Odyssey has said that the ship was not in Spanish territorial waters and was not the HMS Sussex, a shipwreck that Odyssey recently got permission from the Spanish government to search for in the Strait of Gibraltar.

But Spain has called the new discovery suspicious and said the booty may have come from a wrecked Spanish galleon.

In Britain, the find generated press reports that Odyssey had salvaged the wreck of the long-sought British vessel Merchant Royal, which sank in bad weather off England in 1641. Odyssey has not confirmed or denied these reports.

Assuming the wreck was found in international waters, I’m not sure Spain has a tenable claim here. This may just be a perfunctory admiralty action by the Spanish to make Odyssey prove that the wreck was outside Spanish waters, and that it was not a Spanish ship. It is an interesting case, and I’ll continue to post information here as it becomes available.

Another interesting theme to all this is that it will be the colonial powers that have a potential claim here, either England or Spain if the wreck were discovered in their territorial waters. The new world civilizations who were stripped of the precious metal before it was sent back to Europe would of course have no claim whatsoever. On a moral sliding scale, this would seem to render Spain’s claim a bit less sympathetic in my view.

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Largest Historical Shipwreck

Recently, Odyssey Marine Exploration announced they had recovered 500,000 silver and gold coins from a shipwreck which may have been 40 miles from Land’s End in Cornwall. It may be a record for the The BBC has a story here and video here. The Daily Mail has a story here. Odyssey have not released the location of the wreck for security and legal reasons. The treasure has been stored in an “undisclosed location” in the US. The value of the coins recovered could approach half a billion dollars.

Odyssey stresses it is the legal owner of the coins, and that it conducted the salvage by “diligently follow[ing] archaeological protocols using advanced robotic technology, and the artifacts are now undergoing a meticulous conservation process”. I’ll confess a profound ignorance of how much archaeologists can learn from shipwrecks. However Will Anderson over at the assemblage expresses some well-founded skepticism about the archaeological merits of the salvage, “Whether what Odyssey Marine Exploration does can be termed archaeology is debatable”. And in response to claims that the archaeological protocols were followed, “So we shall soon be seeing a full and thorough excavation report published, the site will be assessed and managed, and the loot will not be flogged over the internet”? Chances of that seem unlikely, as Odyssey has already sold coal from another shipwreck, the SS Republic.

Peter Spiro over at Opinio Juris summarizes the current state of shipwreck recovery law in International waters, and ties in the difficulties with regulation of underwater cultural heritage to a new book by Dan Drezner. Drezner postulates a “club standards” situation where there is low conflict among great powers and high conflict between the great powers and other actors. Spiro says “that seems to be what has emerged in the context of treasure hunting, with the great powers reaching ad hoc agreements on particular finds (as was the case with the Titanic), at the same time as they also handle the issue through domestic law. The universalizing option of an open-to-all multilateral treaty gets left by the wayside”.

That brings us to the UNESCO Convention on the Protection of Underwater Cultural Heritage. JH Merryman has been a very vocal critic of the Convention, because it completely precludes commercial exploitation, as was the case here. 14 Nations have signed on. The convention has received little support from most European nations and the United States. Here is an excellent overview of the Convention from Robert Blumberg, who led the US delegation to the UNESCO negotiations. As it stands now, there is no comprehensive law regulating wrecks found in International waters, which begins 24 miles out to sea. Regulation which does exist comes about through multilateral agreements for individual wrecks and bilateral agreements, or domestic legislation.

Clearly, this record recovery will anger some nations, and may provide some new impetus towards forming a workable convention for maritime states, perhaps by amending the UNESCO UCH convention.

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