Valentina Vadi | Article

In February 2012, seventeen tons of artefacts and silver coins recovered from the Spanish galleon NUESTRA SEÑORA DE LAS MERCEDES, which was sunk in 1804 by British warships in the Atlantic Ocean, were returned to Spain. Spain’s ambassador to the United States emphatically noted: “This is history. . . . This is not money. This is historical heritage.” Reportedly, the coins will be exhibited in Spanish museums. The sought-after return comes after five years of legal disputes that began after Odyssey Marine Exploration, Inc. (Odyssey Marine), a U.S. salvor, located and recovered the artefacts in 2007. The United States Supreme Court denied certiorari.

Given the recent technological developments that make it possible to locate and recover shipwrecked vessels located at the bottom of the oceans, the case raises a number of issues regarding the status of sunken military vessels under international law, and these issues may reappear in the near future with regard to other recovered vessels.

Sunken military vessels can be an invaluable source of knowledge and hold a profound military, historical, and cultural value. From a military perspective, sunken military vessels may contain objects of national security or artefacts that could pose a danger to human health and the maritime environment. From a historical perspective, the discovered goods may recall dramatic events of the past and stories of aggression and violence. Still, they offer us the possibility of remembering the deceased and unveil often neglected episodes of the past. From a cultural perspective, shipwrecks can represent an integral part of the cultural heritage of humanity and a particularly important element in the history of peoples and their relations with each other.

Given that sunken military vessels raise a number of legal issues–including humanitarian concerns, issues of ownership, state immunity, preservation of cultural heritage, military defence, and environmental protection, to mention a few–this topic has recently been the subject of legal debate and has been examined from a variety of perspectives. Maritime law scholars have focused on national legislation and coastal states’ jurisdiction, military experts have illustrated the cogency of arguments related to military defence and national security, cultural heritage law scholars have focused on the recovery of historic sunken warships, and international law scholars have focused either on the humanitarian law aspect of sunken warships or on their legal status.

While discussions on the legal status of sunken military vessels are by no means new, what is missing is a systematic conceptual framework that may help the adjudicators, practitioners, and relevant stakeholders find their way in the complex maze of legal provisions. This Article scrutinizes, critically assesses, and contextualizes each building block of the legal framework governing sunken military vessels. It aims to reshape the current discourse in an analytical fashion by examining and systematizing such diverging perspectives and critically assessing the legal framework that governs sunken military vessels. In particular, this Article aims to investigate the destiny of sunken military vessels through the following different, but interconnected, regulatory paradigms: (1) the rules governing sovereign immunity, (2) the rules governing property, (3) international cultural law, and (4) humanitarian law. Due to the lack of a unitary legal framework, these approaches only partially overlap and may clash.

In the case of recovery of sunken military vessels, strong political, military, historical, cultural, and diplomatic motives require the consideration of a special regime. In fact, notwithstanding the relevance of sunken military vessels, an overly complex regime governs these vessels at the national and international law level, leaving many legal issues unsettled. Maritime powers hold that sunken warships are the property of the flag state, immune from the jurisdiction of countries other than the flag state and that “title to such vessels . . . is not lost by the mere passage of time.” Therefore, they insist on a rule that requires the consent of the flag state even in the case of activities directed at a wreck located in the territorial waters of third states. Other countries, however, contend that such an approach would unduly limit the sovereignty of coastal states. Finally, political factors and issues of reciprocity have moved a number of states to grant special treatment to these vessels. It remains to be seen whether the firm and uniform approach of maritime powers will determine the crystallization of a norm of customary law in this field.

This Article proceeds as follows. First, it defines the notion of military vessels and scrutinizes the regime that governs them. Second, this Article examines the concept of state immunity and its applicability to sunken military vessels. Third, it argues that the concept of property can provide an alternative ground for granting a special regime to sunken military vessels. Fourth, this Article explores the application of the cultural-heritage paradigm to historic sunken vessels. Fifth, it examines humanitarian law relating to sunken military vessels. Finally, this Article scrutinizes the different rationales behind the existing case law to verify whether the identified paradigms (sovereign immunity, public property, cultural concerns, and humanitarian concerns) can, and do, justify an ad hoc regime for sunken military vessels that removes them from the purview of the law of salvage and the law of finds.