Ownership and Protection of Wrecks Beyond the Limits of National Maritime Jurisdiction

Shipwrecks — Law of salvage

The concept of salvage law focuses on vessels deemed “in peril”, assuming the presence of an owner and entitling the salvor to a reward. Scholars estimate that Colombia alone has over 1200 wrecks off its coast, and there are believed to be more than three million shipwrecks scattered across the ocean floor. Among these wrecks, there is an enticing treasure trove of over $60 billion waiting to be discovered. With the abundance of sunken vessels yet to be found and the advancements in deep-sea technology, the issue of ownership regarding the contents found at the sea bottom has led to increased discord between the finders and the countries claiming rights to the wrecks¹. As the ownership of these finds carries political, legal, and cultural implications, international law must establish better mechanisms for determining ownership of salvaged wrecks.

The absence of international guidelines governing property rights for shipwrecks discovered on the seabed has resulted in disputes surrounding their salvage. For instance, in 1980, the discovery of the wreck of Admiral Nakhimov², a Czarist warship sunk in the Strait of Korea during the Russo-Japanese War, sparked a heated controversy between the Soviet Union and Japan. The Soviet Union argued that the ship possessed sovereign immunity due to its status as a warship. The salvage attempt of a Soviet submarine that sank approximately 750 miles from Hawaii in 1968³ by the United States caused debate but did not escalate into a major controversy between the superpowers.

The discovery of the Titanic in 1985 brought about discussions concerning claims and property rights to the ship and its salvageable goods.⁴ In an attempt to dissuade parties from disturbing the wreck or recovering artefacts, President Reagan signed a bill designating the Titanic as a maritime memorial. In October 1986, a Soviet atomic submarine sank in international waters while carrying sixteen ballistic missiles armed with two nuclear warheads each⁵. Although the United States declared that it would not salvage the submarine, many countries may have been interested in attempting its recovery. The technological advancements enabling the discovery of sunken vessels have exposed the inadequacies of the international legal frameworks regulating the salvage of shipwrecks in international waters. The lack of international guidelines has led to past disputes and may potentially result in controversies escalating into international conflicts⁶.

The two main legal principles involved are the law of finders and the law of salvage. The law of finders provides a greater incentive to pursue wrecks as finders are entitled to the discovered property, whereas salvage law only grants salvors a reward from the property. However, both laws fail to consider the cultural or historical significance of the found wrecks. For instance, despite the San José carrying plundered wealth from Peru⁷, the Peruvian Government was unable to claim any of the salvaged finds because it did not locate the ship.

Gap analysis

Although the shortcomings of salvage law and the law of finders are evident, there have been limited codified reforms addressing these issues. The United Nations Convention on the Law of the Sea (UNCLOS)⁸ attempted to tackle various maritime law matters, including ownership of ancient shipwrecks. Articles 149 and 303 of UNCLOS pertain to ancient shipwrecks discovered on the high seas. Article 303 establishes the principle that all states must act to protect archaeological and historical objects found at sea⁹. Article 149 emphasises the preservation or disposal of archaeological and historical objects for the benefit of mankind, taking into account the preferential rights of the state or country of origin, cultural origin, or historical and archaeological origin¹⁰. Although Article 149 comes close to addressing the issue, it lacks a clear definition of “objects of an archaeological and historical nature”. Similarly, Article 303 does not address ownership rights and therefore fails to resolve disputes over wreck ownership. Furthermore, the creation of the International Seabed Authority under UNCLOS proves ineffective in determining ownership of salvaged or found shipwrecks, as its jurisdiction is limited to mining and exploration issues.

Recognising the need to establish rules governing sunken archaeological artefacts, the 2001 UNESCO Convention on the Protection of the Underwater Cultural Heritage¹¹ addressed some of UNCLOS’s shortcomings. The Convention’s primary commitment was to enhance the preservation of underwater cultural heritage. It obligated ratifying states to conduct scientific research according to their capabilities and emphasised in situ preservation as the preferred option¹². The Convention also prohibited the commercial exploitation of underwater cultural heritage and encouraged States to share information related to sunken wrecks. While the Convention improved certain aspects of UNCLOS, it did not adequately regulate wreck ownership.

To address the uncertainties surrounding ownership of sunken wrecks and warships, the Institut de Droit International (IDI) adopted a resolution on “The Legal Regime of Wrecks of Warships and Other State-Owned Ships in International Law.”¹³ Similar to previous treaties, the IDI Resolution grants warships and naval vessels immunity from the jurisdiction of any State other than the flag State.

In India, various legislations such as the International Convention on Salvage (1989)¹⁴ under Part XIII of the Merchant Shipping Act, 1958¹⁵, the Merchant Shipping Rules, 1974¹⁶ (amended in 1975), and the Nairobi International Convention on the Removal of Wrecks, 2007¹⁷, deal with salvage and wreck removal. Additionally, legislations like the Ports Act, 1908¹⁸, the Merchant Shipping (Limitation of Liability for Maritime Claims) Rules, 2015¹⁹ — Amendment Rules, 2017²⁰, and the Carriage of Goods by Sea Act, 1925²¹ address cargo claims. However, none of these legislations clarify India’s claims on wrecks beyond its national jurisdiction according to UNCLOS.

Areas for further exploration and resolution

Amendment of UNCLOS. — The United Nations should consider amending UNCLOS to establish a multinational committee specifically designated to resolve controversies involving submerged wrecks. As maritime law requires expertise in interpreting the ambiguities within UNCLOS, a multinational committee would ensure the respect of each member State’s rights. However, amending, or reforming UNCLOS III in the near future may be unlikely, given the extensive discussions and debates that occurred during its ten-year drafting process.

Establishment of an organisation/tribunal/special committee. — An organisation similar to the International Seabed Authority could be formed to address salvage wreck claim evaluations on a case-by-case basis. This committee should consider several factors when assessing each claim, including the duration the wreck has been submerged, its location, salvage efforts by the involved parties, the cultural connection of the parties to the wreck or its cargo, preservation plans, and proposals for the wreck and/or its cargo.

Incentives for finders and salvors. — The principles of finders and salvage law remain relevant as they provide incentives for both States and private companies to search for sunken wrecks. A mechanism should be established to ensure that both parties receive proportionate rewards for their investments.

Multilateral agreements. — While bilateral agreements have played a crucial role in resolving past disputes and will continue to be useful, a broader source of international law should govern wreck ownership. A new multilateral convention, akin to the Brussels Salvage Convention, 1910²², could exclusively address wreck-related conflicts, as the Salvage Convention, 1989 does not adequately cover these aspects in its current form. The prospective conventions should attempt to involve a broader range of signatories for effective implementation.

Reforms in Salvage Convention 1989. — The Salvage Convention should be thoroughly reformed to uphold high standards in maintaining environmental protection. The current paradigm needs to be rebalanced ensuring preservation of the marine environment alongside the interests of salvors and States.

Conclusion

The issue of ownership and protection of wrecks beyond the limits of national maritime jurisdiction is a complex and contentious matter. The lack of international guidelines, inadequacy of regional and national laws of developing nations and existing laws of developed nations have led to disputes and controversies over wreck ownership. Continuous efforts have been made by the international community through conventions and resolutions such as UNCLOS, UNESCOConvention, and the IDI Resolution, but they fall short in providing a comprehensive solution.

By multilaterally addressing these challenges and implementing effective international mechanisms, we can strive to restore the cultural heritage of nations, providing a better remedy in the form of a mechanism for determining ownership of salvaged wrecks. It is crucial to recognise the political, legal, and cultural ramifications associated with any of the incidents and wreck ownership, and work towards establishing a framework that respects and upholds the rights and obligations of all the parties involved while preserving our valuable maritime heritage.