Hot water: Treasure hunters vs the lawPosted: 26 November, 2020
Author: Ross Booth
LLB student, University of KwaZulu-Natal
The ocean is an enormous place. In fact, its enormity is estimated to cover an area of 361 million square metres and hold around 97% of the earth’s water. It is thus no surprise that things are sometimes lost to the gargantuan depths. However, what happens when they are found?
Modern-day treasure hunting has become a high-risk-high-reward field, but it seems that in many cases, the risk vastly outweighs the reward. Most people, infatuated by the possibility of discovering sunken fortunes, fail to realise the implications that could arise if they do. In fact, the law has made it virtually impossible to keep the entirety of one’s treasure hunting loot – if any portion at all.
Although most countries have their own laws concerning sunken treasure, as far as international law goes, the UNESCO Convention on the Protection of the Underwater Cultural Heritage is the most far-reaching legislation. Having been adopted in 2001, the Convention has been ratified by several countries (including South Africa and a number of African countries), coming into force in 2 January 2009. The Convention intends to protect and preserve sunken human property submerged for a period longer than 100 years. This includes, inter alia, shipwrecks, artefacts and art – virtually anything a treasure hunter would consider valuable. Within the Convention are guidelines for ocean site excavations and prevention techniques to guard against unlawful looting. Sadly, however, like most international conventions, it is not binding on countries that have not ratified it and may thus be futile as a means of international dispute resolution concerning valuable finds. In 2015, Spain attempted to use this Convention to obtain control over a sunken Spanish galleon, the San José, which was found off Colombia’s coast. Because Colombia is not a party to the Convention and the wreck was found in its territorial waters, Spain was unsuccessful in its efforts, and the wreck remains in place to this day. It is estimated that the gold, emeralds, and artifacts found on the ship equates to around 18 billion USD in value.
As a general rule, wrecks found in international waters belong to their respective country of origin – regardless of their age or date of wreckage. This was observed when an international treasure hunting organisation, Odyssey Marine Exploration, located the Nuestra Senora da les Mercedes – a Spanish vessel which sank in 1804 during the Battle of Cape Santa Maria. Odyssey soon found itself in hot water after the Spanish government accused it of “looting” based on the intent to profit from the wreck. Following legal proceedings that spanned five years, the treasure found in the wreck was handed over to the Spanish government on a ruling passed down by the US Court of Appeals for the 11th Circuit. Over and above this, Odyssey was further ordered to pay the Spanish government 1 million USD in legal fees.
Given the difficulty of relying on international conventions, many countries have created their own legislation concerning wrecks found in territorial waters. For example, the US employs the Shipwrecked Act of 1987 which bestows custody of any wreck to the State, provided it is within 3 miles of the shoreline. Furthermore, countries will go to great lengths to retain ownership over their wrecks – regardless of who finds them.
As for South Africa, disputes over sunken treasure are rare to the point that only a handful of related cases have gone before our courts in the past. With regards to the hundreds of wrecks that dots SA’s coasts, the government emphasises preserving them in line with the UNESCO Convention and the National Heritage Recourses Act. Wrecks protected in this regard are safe from treasure hunters, as the act of removing items from them is considered looting. However, in terms of wrecks no older than 60 years, one may be able to acquire ownership of their contents if it is clear that the previous owner intended to abandon them to the depths. According to the law of occupation, the acquirer may become the lawful owner of abandoned property if they establish physical control over the object(s) in question with the intention of becoming the owner. In line with this law, it is absolutely imperative that a wreck is confirmed to be abandoned to avoid a possible charge of theft.
Strict laws concerning wrecks accordingly create immense difficulty for treasure hunting hopefuls in South Africa. Additionally, because discoveries concerning treasure-filled wrecks are quite rare, each matter is dealt with on a case-by-case basis, in line with local and international laws and treaties.
So, if one were lucky enough to stumble across a wreck laden with treasure, it is likely they would be forced to hand it over to its original country of ownership or the country territorially associated with the waters in which it was found. At best, one may be given a finder’s fee (generally around 5% of the wreck and its contents worth) to cover the most fundamental costs associated with the find.
Accordingly, perhaps in light of the odds stacked against treasure hunters worldwide, the treasures of the deep are best left alone.
About the Author
Ross Booth is a third year LLB student at UKZN studying towards currently seeking articles of clerkship for the year of 2022 and hopes to pursue a career in Corporate and Finance Law. He is a member of the UKZN Moot Club, Golden Key Honours Society and represents his class in several academic modules. Outside university, he enjoys athletics and is currently training towards running the Two Oceans in 2021. His interests include foreign affairs, politics and cinema. He is also a huge dog lover with a soft spot for German Shepherds.