Caecilia Dance
- Solicitor
- Art & Luxury Law
Shipwrecks in the Caribbean and South America, filled with valuable cargo, remain unclaimed or are salvaged by private companies, with former colonial powers often asserting ownership. Why is the restitution of underwater cultural heritage so far behind that of land-based artefacts? We explore the complexities of this issue.
During the European colonial era, enormous quantities of natural resources (including gold, silver and precious stones) were shipped on trade routes to Europe from the Caribbean, South America and elsewhere. While much of this enriched the colonial powers, some of it never reached port due to the perils of early modern shipping. The Caribbean and the waters around South America, in particular, are littered with colonial-era shipwrecks where ships were caught out in fierce storms or attacked by rival colonial powers. Most of their cargo has either remained on the seabed, unable to be claimed by the countries of origin, or where accessible, excavated by private salvage companies, with former colonial powers then weighing in to claim ownership over source countries. There is no obvious explanation for why the approach below the seas lags so seriously behind that taken to objects held on land.
The question matters not just because of what underwater cultural heritage sites can tell us about history, but because the cargo of colonial-era shipwrecks can be incredibly lucrative in terms of both tourism and monetary value. Just one sunken Spanish galleon, the San José, is said to contain gold, silver and emeralds worth billions of dollars. Colombia and an American salvage company have been locked into a legal battle over their respective claims to the San José and its contents for years now, with Colombia recently announcing its intention to examine the wreck and Spain indicating an intention to intervene in the dispute.[1]
For countries with access to what may be very significant resources on their seabeds, there is enormous potential for economic and cultural development. But these countries have not benefited. Salvaging underwater cultural heritage can be expensive and fraught with practical difficulties (how to recover artefacts without damaging the wider archaeological site?). International cultural heritage law[2], where applicable, provides that underwater cultural heritage should, as a default option, be preserved in situ and must not be “commercially exploited”.[3]
Until now, former colonial powers have dominated claims to ownership of these historic wrecks (even once brought on shore). Spain in particular has been active in claiming the contents of colonial-era shipwrecks against private salvage companies. In general, ‘source’ countries have not had much of a look-in. This is an anomaly in a world where Commonwealth and other governments are demanding slavery reparations. Why should countries in the Caribbean, South America and elsewhere not be able to lay claim to their underwater cultural heritage and enjoy the many development opportunities it offers?
The great potential of colonial-era underwater cultural heritage could even – if managed correctly – give former colonial powers a historic opportunity to meet their moral obligations to countries whose lands they exploited or whose people were victims of the Transatlantic slave trade. Just as cultural partnerships are blossoming between European cultural institutions and source countries following successful restitutions of colonial-era artefacts, helping to recover underwater cultural heritage may prove the next frontier for cultural and political collaboration between countries and their former colonisers.
If you are interested in colonial-era underwater heritage, any other artefact, or would like to protect an item of cultural significance, please contact the Art & Luxury team. Wedlake Bell’s Art & Luxury team provide market leading legal expertise alongside a genuine passion for preserving artistic heritage. We can help guide you through all the considerations ranging from cataloguing and authentication items, to tax planning, allocation and ownership.
[1] The treasure of the San José – NZIAC Website.
[2] In particular the 2001 UNESCO Convention on the Protection of Underwater Cultural Heritage.
[3] Convention on the Protection of the Underwater Cultural Heritage – Legal Affairs; Article 2 points 5 and 7.
Meet the team:
Tim Maxwell
- Partner
- Art & Luxury Law
