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The crossroads of the San José Galleon

For the last 40 years–counted since granting the exploration license– the San José galleon has sporadically ventured across the three branches of the Colombian Government, with heated debates in Congress, some laws and decrees, judicial sentences from courts and high courts.

There are some historical data that account for specific circumstances of the shipwreck that occurred on June 8 of 1708, a week before the important Portobello Fair in what is now Panama. However, the Government has not promoted research of the San José galleon, nor the rich and cultural undersea patrimony of Colombia.

On the contrary, research has been limited, among other factors due to the confidentiality provided by law, for many years considered as a matter of national security.

The weight of time

One of the more interesting aspects of studying archeological important shipwrecks lies in the need to approach the issues they have to their long history and their relationships with geography, sociology, anthropology, and inclusively judicial forms that have governed through time.

In 1569, Flemish geographer Gerardus Mercator published a map of the world respecting the cartographic projection of the continents but not the sizes. The flat map allows using longitude and latitude lines to chart a straight route, which was very useful to sail around the world and boosted exploration of Europeans, initiated by Columbus to America.

A class action looks to cancel the Private Public Action with Maritime Archaeology Consultants Switzerland (MACS), for alleged irregularities, lack of experience and transparency, and the non-viability of submitting a world cultural legacy to state contracting.

The development of cartography has not been exclusive to the Europeans. Since the Third Century Chinese cartography began with a History Classic, one of the five classics of the Chinese culture.

Between 1405 and 1433, Chinese mariner and explorer Zheng He carried out seven naval voyages with very superior technical vessels, great logistics, and a good number of mariners, better than the Europeans; exploring Indonesia, Ceylon, India, Southeast Asia, the Persian Gulf, the Arabic Peninsula, and eastern Africa to the Mozambique channel, producing notable diplomatic, cultural and market results. He never annexed territories or submitted people to colonial domination.

Historia, especially in regards to stages of raw material and precious metal extraction in territories submitted to colonial domination has an important weight in the justifications of current archeological-important shipwreck legal claims.

Spain has been exerting intense legal and diplomatic activism to claim exclusive and excluding property over historic shipwrecks, as claimed in the wreck of the Las Mercedes frigate, concluding their process of extraction of raw materials and precious metals that were truncated due to several historic circumstances in what for centuries they considered “their territories.”

The Spaniard proposal is incomplete as it tries to ignore the contributions of the colonized world of the past in the setting of the underwater cultural legacy. The vision on which it bases its claims over historic shipwrecks corresponds with the European humanist-colonialist legacy to “classic” international law. It is necessary to oppose this international de-colonizing vision law from the southern countries, not only for the undersea cultural legacy, which promotes the creation of opportunities of its participation in conditions for real equality with the rest of the countries. Therefore, two counterposed visions will play out, not only in potential international controversies but also in future diplomacy and international relationships. This is the greatest crossroad of the San José galleon.

Justice for the galleon 

The voyage of the galleon across the interests and litigation in Colombia has produced some complex decisions, that have complicated the shipwreck situation even more and with the appearance of new facts of legal, and diplomatic relevance.

In July of 2007, The Cassation Court of the Colombian Supreme Court of Justice as a conclusion to a 20-year process ruled to acknowledge the property in equal parts to the State and Sea Search Armada, over the assets susceptible to be recognized as “treasures” based on the claim of a breach of the coordinates in a confidential underwater exploration report. The Court did not identify scientific, or archeological criteria to distinguish the assets of the shipwreck that would fall into the category of “treasure.”

In the ruling of February of 2018, as the conclusion of a process initiated by the author of this article, the Council of State stated that the patrimony of the San José galleon shipwreck, was “armor-clad” with the ruling of the Supreme Court of 2007 when it defined litigation between Sea Search Armada and the Colombian Government”.

With the previous statements, the ruling of the Council of State abstained from addressing the issue of the coordinates of the real location of the shipwreck in the claim, which is still an issue for the galleon.

In follow-up of an announcement of the previous administration (former president Juan Manuel Santos) on the discovery of the galleon, a Private Public Action (PPA) for the rescue of the galleon is currently in process with the company Maritime Archaeology Consultants Switzerland (MACS), as the only proponent.

A class action looks to cancel the PPA, for alleged irregularities, lack of experience and transparency, and the non-viability of submitting a world cultural legacy to state contracting.

There seems to be a dilemma in this: If the PPA is canceled a series of lawsuits could emerge against Colombia, even MACS could add to the list of claimants of the shipwreck.

Justice in Colombia has been evasive for the galleon, in good part because the vision and rescue interests have prevailed over what should have been developed from a scientific knowledge perspective, and promoted, and coordinated by the Government, or the issue of underwater cultural patrimony, historical factors that bear over it and to effectively armor-clad the process in face of possible claimants of a highly disputed shipwreck.

Someone said with some humor, and not far from reality, that how the current legal situation of the San José, in case of a prompt rescue, the Colombian Government would have to surrender the whole shipwreck and additionally indemnify several claimants, providing a clear idea of the uncertainties around the process.

Paths in the sea

The destiny of galleons is to be disputed since the times they filled the seas and moved the maritime “races” transporting raw materials and precious metals to an imperial-war troubled Europe up to today when underwater technologies have made historical shipwreck exploration and exploitation possible. The San José galleon could not be the exception.

In November of 2019, German Politician and Physician Ursula von der Leyen stated that the European Commission, which she started to preside, should be geopolitician, without specifying the mechanism to carry out a peace process, proper of the values vindicated by the Europeans, that could be promoted with a geopolitics program. Now with greater reason now that the pandemic has made evident that the western hemisphere does not represent the rest of the world if it ever did.

The legal issues of the San José shipwreck demand legal solutions, not voluntaristic statements, however important they may be.

It is necessary to propose a cultural vision, that as a priority, vindicates the contributions of this part of the world to the underwater cultural legacy and that can question the legitimacy and validity of applying said immunity to more than thousand-year-old shipwrecks, which as archeological reality, what predominates after several centuries is the load provided by the southern countries summited to colonial domination.

At the beginning of his term, in September 2018, President Iván Duque, through Decree 1714 commissioned Vice-president Marta Lucía Ramírez, among other duties, to “coordinate the related actions for the Underwater Cultural Legacy of the San José galleon,” which, if interpreted in ample sense, is a confirmation of the constant, several times mentioned, prioritization of the rescue. 

There are no known, existent policies, or studies carried out by the Government, related to the importance and wealth of the underwater cultural legacy of the Colombian waters, the positions of the Colombian Government toward the international community, nor the specific studies over the complex issues presented by the San José galleon.

An honorable exception was the decision to declare the galleon as an asset of cultural interest, provided by the Oversight Office for Subaquatic Cultural Patrimony. One of the consequences of this decision lies in that any provision for the galleon or part of it, or any agreement in that sense, should be passed through Congress, as has been ratified by the Constitutional Court in a relevant ruling, particularly in the case of the Quimbaya Collection.

The legal issues of the San José shipwreck demand legal solutions, not voluntaristic statements, however important the public officers that make them they may be.

As historic constant, galleons resist those who deny fighting the battles they deserve and will not be facilitated for those who consider them an easy target. The remaining dilemmas that surround the San José galleon, over which viable alternatives have yet to be configured, and not even some statement from the Colombian Government lead to think that the difficult rescue will still take some time.

Consejo Editorial