Spain abandoned all shipwrecks before 1648

[Rodrigo Bazo]

With the signing of the Treaty of Munster, Article II, in 1648, Spain and all of the other signatories abandoned all shipwrecks that occurred before 1648. This treaty along with the Treaty of Onsnabruk, brought about the end of the Thirty Year's War. Together with subsequent lessor treaties became known as the "Peace of Westphalia". Inexorably, the other nations of the world coalesced around this Westphalian community of nations, giving us our present, "Westphalian System" World Order, which is the foundation of the United Nations and the basis of all international relations.

What occurred and came out of the Peace of Westphalia, was the principle of defined borders, autonomy of religion and government within those borders, and the right of states to resolve disputes between themselves, to exclusion of the Vatican. Thus, bringing to an end, the era of the European World Order known as "Christendom". With this, modern day State Sovereignty was born and "Sovereign Immunity" as it may be asserted in US Courts, did not exist before 1648. Spain, nor any other country can claim Sovereign Immunity to anything before 1648, it is "bury'd in oblivion". What a can of worms it would be for World Order if States had legal standing to resolve grievances predating 1648. Take China for example, she was brought into the Westphalian System in a shot gun wedding, but has a 5,000 yr., uninterrupted history as a political and cultural entity. What if they suddenly decide their pre 1648 world view and legal standing is valid? I recommend "World Order", by Henry Kissinger. It is all about the Westphalian System.

There is way too much of this for this venue, so let's cut to the chase, here is the link to the Treaty of Munster:

Avalon Project - Treaty of Westphalia

There are 128 Articles, but here is Article II of that Treaty, it is emphatic, please read it three times:

II.


That there shall be on the one side and the other a perpetual Oblivion, Amnesty, or Pardon of all that has been committed since the beginning of these Troubles, in what place, or what manner soever the Hostilitys have been practis'd, in such a manner, that no body, under any pretext whatsoever, shall practice any Acts of Hostility, entertain any Enmity, or cause any Trouble to each other; neither as to Persons, Effects and Securitys, neither of themselves or by others, neither privately nor openly, neither directly nor indirectly, neither under the colour of Right, nor by the way of Deed, either within or without the extent of the Empire, notwithstanding all Covenants made before to the contrary: That they shall not act, or permit to be acted, any wrong or injury to any whatsoever; but that all that has pass'd on the one side, and the other, as well before as during the War, in Words, Writings, and Outrageous Actions, in Violences, Hostilitys, Damages and Expences, without any respect to Persons or Things, shall be entirely abolish'd in such a manner that all that might be demanded of, or pretended to, by each other on that behalf, shall be bury'd in eternal Oblivion.

 

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[ivan salis]

in other words --no treaty before 1648 "stands" basically its a "whole new world" this document starts as day 1 with the current countries and borders defined as this is this and that is that .. and what nation owns what land and sea areas ...it in effect defines the world as it existed and what was what and whom owned what

 

[Vox veritas]

Rodrigo, very interesting!

 

[old man]

I wish an attorney would chime in on this.
In essence, I take this treaty to mean that if I found a pre 1648 Spanish treasure wreck. That Spain would have no claim to it?
Is that true?

 

[AUVnav]

I think you would have to look at ownership as a Country, vs ownership as a Kingdom. The Kingdom of Spain as we know it, has developed from the estate, going back to the 4th century.

Wasn't most of everything in the regards to shipwrecks the property of the King of Spain?

 

[Rodrigo Bazo]

As we all know, the US Court, in keeping with International Law, has ruled that a Sovereign State does not lose title because it does not fall out of existence, unlike private or corporate ownership that falls to the vagaries of time, with exhaustion of family blood lines or dissolution of corporate structure. Furthermore, the Sovereign State has no burden to prove that it has not abandoned a vessel. Since pre 1648 Spain has no diplomatic credentials or recognition, if in fact a ship was the property of the King, and mind you all were not, there was private ownership, then title would reside with the Hapsburg family as a private owner. However, private owners may retain title today in real time, they do not have the protection of Sovereign Immunity against the assertion of abandonment by a salvor.

The US Courts cannot bend or ignore Customary International Law simply to give treasure to Spain.

I'll be in touch with much more stuff...

 

[AUVnav]

The Law of Salvage is pretty specific, Salvage may be refused by an owner. Spain, not only as sovereign, but as owner, has refused salvage on its property.
One can have sovereign property on any vessel.

Sovereign immunity was not claimed, Sovereign ownership is, and is not only applied to a State, sovereign can be a monarch, king, or queen as well.
Even today, while a vessel transiting anothers territory is sovereign, it does not enjoy sovereign immunity.

Good luck, but I really would not waste too much time on this.

 

[old man]

Rodrigo, interesting theory. Tell us more.
I would also like a Legal opinion on whether the U.S. has legal standing to challenge any treaty that was in effect before it became a Country in 1776 ?

 

[Rodrigo Bazo]

More stuff

I believe there is precedent of the US of the US Court dealing with issues that pre date the onset of the Court's jurisdiction with the ratification of the Constitution in 1781 (if I remember correctly). I don't think is so much of an issue. There is the Doctrine of Iner-temporal Law, which says that facts or disputes must be viewed in the context of the laws that were in effect at the time of the event, not at the time the issue was brought to question or came to be settled.


Salvage cannot be refused by an owner has been found to have abandoned the ship in question (referring to an earlier comment). That is for starters. Second, and once again, modern day state sovereignty as may be asserted in court, did not exist before 1648. Therefore, Sovereign Immunity could not be recognized with regard to any ship sank prior to that date. To do so would violate the Doctrine of Inter-temporal Law (see Las Palmas Island case, Justice Huber).

With the Treaty of Munster in 1648, Spain expressed its abandonment to one half of the planet, to which it had held title under the Treaty of Tordesillas. The text of Article II, clearly includes all shipwrecks as well. What Spain and the others came away with was their geo-political foot print at the time, including colonies. Otherwise, the Treaty of Tordesillas would still be in effect and Spain would still have title to all of North and South America, as granted to it by Pope Alexander VI, Rodrigo Borgia.



Below are some excerpts of notices given by various countries concerning Sovereign Immunity. Customary International Law holds that such immunity is extended to ships owned by or in the service of States on non-commercial missions. You will see that Spain expands that definition, and no Court is necessarily bound to that. More interesting, and getting back to the Treaty of Munster and the Peace of Westphalia, the Russians only claim ships as far back as the Russian Empire which was established in 1721. That same year, the Empire was granted diplomatic recognition by the Westphalian Community of Nations (which has country by country grown without interruption into our present system). The Russian Royal line of course goes back well before 1721, but the point is that their own recognition and participation in the current World Order, granting legal standing in US Courts and others does not start until 1721. This is unlike Spain and the others whose modern day legal standing begins in 1648.

There is a limit to Sovereign Immunity, it does not go back to the cave drawings. It starts in 1648. The poetic irony is that Spain enjoys Sovereign Immunity because of the Treaty of Munster, not before it.

Again, I recommend, "World Order", Henry Kissinger, 2014



Germany: "Under international law, warships and other vessels or aircraft owned or operated by a State and used only on government non-commercial service ("State vessels and aircraft'') continue to enjoy sovereign immunity after sinking, wherever they are located. The Federal Republic of Germany also retains ownership of any German State vessel or aircraft owned by it or the German Reich at the time of its sinking. Further, many sunken warships and aircraft are maritime graves, which have to be respected. No intrusive action may be taken in relation to German State vessels or aircraft without the express consent of the German Government."9

Japan: "According to international law, sunken State vessels, such as warships and vessels on government service, regardless of location or of the time elapsed remain the property of the State owning them at the time of their sinking unless it explicitly and formally relinquishes its ownership. Such sunken vessels should be respected as maritime graves. They should not be salvaged without the express consent of the Japanese Government."10

Russian Federation: "Under international law of the sea all the sunken warships and government aircraft remain the property of their flag State. The Government of the Russian Federation retains ownership of any Russian sunken warship, including the warships of the Russian Empire and the Soviet Union, regardless the time they sank. These craft are considered places of special governmental protection and cannot be salvaged without special permission of the Government of the Russian Federation."11

Spain: "The Embassy of Spain presents its compliments to the Department of State and has the honor to address the matter of Spanish laws and policy regarding the remains of sunken vessels that were lost while in the service of the Kingdom of Spain and/or were transporting property of the Kingdom of Spain. In accordance with Spanish and international law, Spain has not abandoned or otherwise relinquished its ownership or other interests with respect to such vessels and/or its contents, except by specific action pertaining to particular vessels or property taken by Royal Decree or Act of Parliament in accordance with Spanish law. Many such vessels also are the resting place of military and/or civilian casualties.

"The Embassy of Spain accordingly wishes to give notice that salvage or other disturbance of sunken vessels or their contents in which Spain has such interests is not authorized and may not be conducted without express consent by an authorized representative of the Kingdom of Spain."12

United Kingdom: "Under international law, warships, naval auxiliaries, and other vessels or aircraft owned or operated by a State and used only on government non-commercial service ("State vessels and aircraft") enjoy sovereign immunity. State vessels and aircraft continue to enjoy sovereign immunity after sinking, unless they were captured by another State prior to sinking or the flag State has expressly relinquished its rights. The flag State's rights are not lost merely by the passage of time. Further, many sunken State vessels and aircraft are maritime graves, which should be respected. No intrusive action may be taken in relation to the United Kingdom's sovereign immune State vessels or aircraft without the express consent of the United Kingdom."13

 

[old man]

I believe there is precedent of the US of the US Court dealing with issues that pre date the onset of the Court's jurisdiction with the ratification of the Constitution in 1781 (if I remember correctly). I don't think is so much of an issue. There is the Doctrine of Iner-temporal Law, which says that facts or disputes must be viewed in the context of the laws that were in effect at the time of the event, not at the time the issue was brought to question or came to be settled.


Salvage cannot be refused by an owner has been found to have abandoned the ship in question (referring to an earlier comment). That is for starters. Second, and once again, modern day state sovereignty as may be asserted in court, did not exist before 1648. Therefore, Sovereign Immunity could not be recognized with regard to any ship sank prior to that date. To do so would violate the Doctrine of Inter-temporal Law (see Las Palmas Island case, Justice Huber).

With the Treaty of Munster in 1648, Spain expressed its abandonment to one half of the planet, to which it had held title under the Treaty of Tordesillas. The text of Article II, clearly includes all shipwrecks as well. What Spain and the others came away with was their geo-political foot print at the time, including colonies. Otherwise, the Treaty of Tordesillas would still be in effect and Spain would still have title to all of North and South America, as granted to it by Pope Alexander VI, Rodrigo Borgia.



Below are some excerpts of notices given by various countries concerning Sovereign Immunity. Customary International Law holds that such immunity is extended to ships owned by or in the service of States on non-commercial missions. You will see that Spain expands that definition, and no Court is necessarily bound to that. More interesting, and getting back to the Treaty of Munster and the Peace of Westphalia, the Russians only claim ships as far back as the Russian Empire which was established in 1721. That same year, the Empire was granted diplomatic recognition by the Westphalian Community of Nations (which has country by country grown without interruption into our present system). The Russian Royal line of course goes back well before 1721, but the point is that their own recognition and participation in the current World Order, granting legal standing in US Courts and others does not start until 1721. This is unlike Spain and the others whose modern day legal standing begins in 1648.

There is a limit to Sovereign Immunity, it does not go back to the cave drawings. It starts in 1648. The poetic irony is that Spain enjoys Sovereign Immunity because of the Treaty of Munster, not before it.

Again, I recommend, "World Order", Henry Kissinger, 2014



Germany: "Under international law, warships and other vessels or aircraft owned or operated by a State and used only on government non-commercial service ("State vessels and aircraft'') continue to enjoy sovereign immunity after sinking, wherever they are located. The Federal Republic of Germany also retains ownership of any German State vessel or aircraft owned by it or the German Reich at the time of its sinking. Further, many sunken warships and aircraft are maritime graves, which have to be respected. No intrusive action may be taken in relation to German State vessels or aircraft without the express consent of the German Government."9

Japan: "According to international law, sunken State vessels, such as warships and vessels on government service, regardless of location or of the time elapsed remain the property of the State owning them at the time of their sinking unless it explicitly and formally relinquishes its ownership. Such sunken vessels should be respected as maritime graves. They should not be salvaged without the express consent of the Japanese Government."10

Russian Federation: "Under international law of the sea all the sunken warships and government aircraft remain the property of their flag State. The Government of the Russian Federation retains ownership of any Russian sunken warship, including the warships of the Russian Empire and the Soviet Union, regardless the time they sank. These craft are considered places of special governmental protection and cannot be salvaged without special permission of the Government of the Russian Federation."11

Spain: "The Embassy of Spain presents its compliments to the Department of State and has the honor to address the matter of Spanish laws and policy regarding the remains of sunken vessels that were lost while in the service of the Kingdom of Spain and/or were transporting property of the Kingdom of Spain. In accordance with Spanish and international law, Spain has not abandoned or otherwise relinquished its ownership or other interests with respect to such vessels and/or its contents, except by specific action pertaining to particular vessels or property taken by Royal Decree or Act of Parliament in accordance with Spanish law. Many such vessels also are the resting place of military and/or civilian casualties.

"The Embassy of Spain accordingly wishes to give notice that salvage or other disturbance of sunken vessels or their contents in which Spain has such interests is not authorized and may not be conducted without express consent by an authorized representative of the Kingdom of Spain."12

United Kingdom: "Under international law, warships, naval auxiliaries, and other vessels or aircraft owned or operated by a State and used only on government non-commercial service ("State vessels and aircraft") enjoy sovereign immunity. State vessels and aircraft continue to enjoy sovereign immunity after sinking, unless they were captured by another State prior to sinking or the flag State has expressly relinquished its rights. The flag State's rights are not lost merely by the passage of time. Further, many sunken State vessels and aircraft are maritime graves, which should be respected. No intrusive action may be taken in relation to the United Kingdom's sovereign immune State vessels or aircraft without the express consent of the United Kingdom."13

Rodrigo, fascinating information. Do you have any legal opinions based on this information, whether Spain would have any Legal claim on pre 1648 wrecks?

 

[Rodrigo Bazo]

No, I do not have a legal opinion. At least one of my lawyers says that the cynical person would say that the Court will find a way to come up with a result that would serve the broader foreign policy goals of the United States, that being in the service of Spain, a very important NATO Ally of the US.

I do not believe the Court could do that. the Treaty of Munster/Peace of Westphalia is written in stone. How could the US allow Spain to cherry pick from pre 1648? What about Russia and the Ukraine, Egypt and the Suez? The list goes on and on and the implications are to bizarre to talk about.

However, I don't think that whether or not Spain has a legal right is the question. I think more importantly, Spain has a legitimate cultural interest in any warship or privately owned vessel even pre-1648. That is not a popular position but that is the reality. Furthermore, one cannot overstate Spain's contribution to world history. For better or for worse, Spain is more responsible than any other country for the world we have today and we must recognize if not honor that.

Does anyone doubt that if Odyssey had it to do over again, they would do things differently? If I were to find a virgin wreck tomorrow, the first thing I would do is to go through proper channels and invite Spain to assess the site, with the idea of presenting a proposal to cooperate with Spain. That is the way things must go. Everyone must do what is best for the sake of an intact collection. Were I to go to court and fight Spain over a pre-1648 wreck, I would win, but the cost of winning would be too great and not serve my goal, which would be based on an exhibition driven business model.

All of the tough talk sounds great, but it is living in the past and will not get you where you want to go. I am running late, must go.


I

 

[enrada]

After Francis Drake did his 1577-1580 trip up the west coast of South America and around the world, Spain put out a decree to all their Captains to deliberately burn the ship, sink the ship or throw all the treasure overboard so that other countries, pirates, and privateers would not know how much treasure they were getting out of South America. Intentionally abandoning the ship and cargo.
I sent a letter to Greg and Melinda suggesting to them that they should just take the coins back to the site and dump them back overboard. In hind site that should have definitely been done.
By the way does anybody have a copy of Skin Diver 1992 " 10 richest undiscovered wrecks in Latin America" written by Marx. Not sure of which month.