All in the Same Boat? Indigenous Property Rights in Underwater Cultural Heritage
Cheng, Amber Crossman, Houston Journal of International Law
I. INTRODUCTION II. ORIGINS OF THE BLACK SWAN TREASURE A. History of the Black Swan B. Claims to the Black Swan Treasure C. Indigenous Peoples' Relationship to Mining in Peru III. EXISTING TREATMENT OF UNDERWATER CULTURAL HERITAGE IN INTERNATIONAL LAW. A. Maintaining the Status Quo: The U.N. Convention on the Law of the Sea B. Maritime Law: The Laws of Salvage and Finds C. Providing Resistance to Commercial Development of Underwater Cultural Heritage: the UNESCO Convention on the Protection of the Underwater Cultural Heritage D. Defining Cultural Heritage and Creating Duties for Nation States: the U.N. Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property E. Cultural Heritage as a Human Right: the U.N. Declaration on the Rights of Indigenous Peoples F. Prospective Protection of Indigenous Cultural Property Rights: International Labor Organization Convention concerning Indigenous and Tribal Peoples in Independent Countries IV. LIMITED OPTIONS: FINDING RELIEF FOR INDIGENOUS PEOPLE A. Reliance on States to Protect Indigenous Underwater Cultural Heritage B. Claim title to Coins in Maritime Law C. Demand Redress for Harm Caused by Colonization V. CONCLUSION
In March 2007, Odyssey Marine Corporation (Odyssey) (1) discovered the controversial Black Swan (2) treasure on the Atlantic sea floor. (3) The treasure is worth approximately $500 million and consists of silver and gold coins. (4) This extraordinary discovery has resulted in a Federal Court case, in which Spain, Peru, and descendents of Spanish Merchants have all asserted a claim to the treasure. Notably absent from the claimants are the indigenous people from whose land and labor the ore was transformed into its current form. This paper analyzes the rights indigenous people have in international law over items that they can fairly claim to be their cultural heritage. In particular, this paper addresses the claims indigenous people may have regarding the salvaged coins. Because there are an estimated three million undiscovered shipwrecks in the oceans of the world, (5) many containing untold wealth and history, questions over indigenous peoples' rights to their underwater cultural heritage are likely to continue in the future.
Part II of this paper will discuss the history of the Black Swan, the current claims to the Black Swan coins, and the indigenous peoples' relationship to the mining of those coins. The coins discovered by Odyssey were mined and minted in Peru when Peru was still a viceroyalty of the Spanish Empire. (6) These precious metals were mined through the exploitation of indigenous people (7) under terrible working conditions, (8) and then transported to Spain with little benefit to themselves or their community. (9) The fused relationship of the coins to the history of indigenous Peruvians is evidence that the coins represent their cultural heritage. (10) Therefore, indigenous Peruvians should have standing to assert a claim to them. Unfortunately, as discussed in Parts III and IV of this paper, any rights indigenous people would have to the coins are for the most part ignored in State-centric international conventions and declarations.
II. ORIGINS OF THE BLACK SWAN TREASURE
A. History of the Black Swan
The recent development of advanced deep-sea sonar and magnetometer technology has made feasible the discovery of forgotten wrecks hidden in deep international waters. (11) One shipwreck discovered using this technology is the Black Swan. (12)
The Black Swan lies approximately 100 miles west of the Straits of Gibraltar in the Atlantic Ocean. (13) Odyssey has kept its precise location secret to protect the find from other treasure hunters. …