marzo 8 de 2018 Bogotá D.C.
Antonio José RengifoUniversidad Nacional de Colombia Professor and London University Ph.D. in International Law of the Sea.
The ruling of the Colombian Council of State released this week does not provide judicial security to Colombia for future international disputes. Colombia lost the opportunity to clear the air on this controversial topic.
For the goals the Colombian government officially announced on December 2015 over the recovery of the San José galleon, the issue is not the internal discussion of the higher courts or the right of Sea Search Armada (SSA), or the public action already decided.
The ruling of the Colombian Council of State over the galleon has produced diverse reactions, as well as interpretations and comments and unclear statements from magistrates of the same Council.
The objective was that Colombia stated a position regarding the legal scope in face of eventual or already stated claims of other governments over this shipwreck, a much disputed cultural heritage.
An additional issue is the dispersion of the ruling, which seems more like a concept from the Consultation Court than a ruling, which only added to the confusion. Lastly, the struggles or “arm wrestling” between governments and international legal controversies over historical shipwrecks also hinder understanding the problem.
But, what is the goal of the petition of 2002 for the defense of the collective rights of Colombians and ended with this ruling? The purpose was for the justice system to determine the legal standing of the shipwreck in Colombian waters not far from the port city of Cartagena, in face of national as well as international law.
Beyond producing an internal debate over the issue, the idea was for Colombia to determine its legal position in face of eventual or already expressed claims from other governments.
The reason for the petition was not for the Colombian government to declare that the San José galleon is part of the Colombian cultural heritage but to question the lawfulness of Resolution 354 and the procedures of the General Maritime Directorate (DIMAR, for its Spanish acronym) which in 1982 led to recognize SSA the rights over the shipwreck and consequently the rights for recovery. Therefore, the legal standing of the rights claimed by SSA over the galleon was being contested.
The Colombian Supreme Court ruling of 2007 confirmed unequivocally that SSA had rights to 50% of the part considered as “treasure” by virtue of the rights assignment of DIMAR. It also clarified that SSA would not have rights over the part considered as cultural heritage of Colombia. This ruling was not void on internal debate, as two magistrates had dissenting opinions on the matter and questioned applying the legal category of “treasure” to the galleon as well as claiming that the majority claimed to protect the cultural heritage of Colombia, but ruled against the nation.
The Colombian Supreme Court clarified that its ruling with the assumption of the lawfulness of the DIMAR resolution, giving direct competence to the Council of State to decide on the matter.
The Colombian Council of State maintained that the resolution issued by DIMAR was a great threat to the rights and collective interests previously invoked but the ruling of the Supreme Court avoided efficiently and opportunely any contingent damage, risk or threat over the vested interests 25 years later.
The greatest obstacle for Spain, who officially requested information and inclusively claimed it would sue Colombia in case the country proceeded with the recovery, leave no doubts over the diplomatic line for this country, as it has had previous success claiming galleons with its flag, such as with the cases of the frigates Nuestra Señora de las Mercedes, Galga y Juno . Therefore it is clear that the Council of State maintained the validity of the rights of SSA over the shipwreck.
Another important aspect is that the ruling of the Council of State ratified that the National Council for Cultural Heritage was the only institution in Colombia with the competence to decide on which assets of the shipwreck may be considered as “treasure” and which as “submerged cultural heritage”. Also for this Council, the presumed “submerged cultural heritage” discovered is the property of the nation, but it would have been useful to indicate the reasons or alternatives which lawfully allow Colombia to have rights over this shipwreck, in face of international law and the international community.
This does not mean the Colombian has relinquished its legal rights over the galleon and confront allegation from Spain which sustains the galleon was a “state ship” and it should be rewarded rights for its property and has “sovereign immunity”.
There still nothing clear about the whole issue nor has contributed to providing legal security to Colombia in face of claims from other nations.
These are reasons to try to settle all parties and continue calmly over the future of the historical San José galleon and lead to clear and firm positions from Colombia towards the international community in a very complex topic which cannot tolerate more improvisations or false starts.