The appearance of a wreck like the San José holder of a cargo that, had it reached its destination, would have changed history - in the manner of the Unicorn Hergé's book - is, at first sight, a new and surprising fact. It is not. Colombia has been litigating for more than 20 years over possible discovery prizes to be awarded to private companies.

Indeed, submerged wrecks, not so many today, as well as their geolocation map, are known and documented. However, they lack a satisfactory legal framework due to the multiple circumstances and the inadequacy of the international conventions in force.

This situation, in which international rules on jurisdiction and applicable law often break down, favours state agreements with private companies, halfway between treasure hunting and modern piracy. Spain, a historic maritime power, is particularly affected by the ownership of these wrecks. The Junothe Gaugethe Santa Margarita or the Our Lady of Atocha were the cause of litigation in American courts against the companies of that domicile because of the contents of these frigates or galleons. As the Kingdom of Spain v. Odisseus Marine Exploration before the US Court of Tampa, which allowed the return of the contents of the La MercedesThe finding and recovery is an internationally complex case, both in terms of the applicable law and the competent jurisdiction.

The San José is even more complex internationally than La Mercedes. Colombia, the country that announced the discovery and ownership, is not a party to the UNESCO International Convention on the Protection of the Underwater Cultural Heritage signed in Paris on 2 November 2001, which is not yet in force. As Spain has legislated internally on this matter in relation to its maritime-territorial space. Both States are parties to the 1982 United Nations Convention on the Law of the Sea (Montego Bay). Among the different spaces regulated by this Convention, the following are relevant: the so-called territorial sea of 12 miles fixed according to its rules; its contiguous zone, 24 miles from the first one; the adjacent continental shelf that can be determined in extension and the World Heritage Area.

Both Montego Bay as the Paris Convention establish normative references that lead to the right of the coastal state to control and sanction the removal of archaeological or historical objects in the contiguous zone without authorisation. However, on the continental shelf, its actions are limited to the exercise of rights to explore and exploit its natural resources, which prevents the recognition of sovereignty over the underwater cultural heritage found there, even if its position in this zone has been unilaterally extended by means of an internal law. The reasons why Colombia won a lawsuit in the USA against a treasure-hunting company do not now condition the determination of ownership of the find, which does not necessarily belong to the coastal state.

Ownership is not regulated by either of the two Conventions. The Paris Convention has as an essential element the protection in situ of underwater heritage and the prohibition of its commercialisation. Do not settle the question of ownership. This Convention excludes, in any case, the ownership of "underwater heritage".State vessels and aircraft"warships and other vessels or aircraft. belonging to or used by a State and which, at the time of sinking, were used only for non-commercial public service, which are identified as such and which correspond to the definition of underwater cultural heritage. This safeguard is not unique to the Convention but historically has its roots in historical and natural law.

Consideration of the Galleon San José as Ship of StateThe conditions of her sinking, circumstances, voyage and cargo are also sufficiently demonstrated in Naval History. Also the conditions of its sinking, circumstances, route and cargo. Likewise, the death on board in an act of war of almost 600 people.

Now that the Spanish ownership of the wreck and its contents has been clarified, despite the fact that it is not in Spanish jurisdictional waters, it is not enough for Spain to be in the right. It is also necessary, in the face of obvious opposition from Colombia, a country with strong ties to Spain, to determine the jurisdiction before which to prove the facts and claim ownership. And this is not easy. Even knowing the relevant factual data, such as the exact location, which has been declared, curiously enough, a state secret.

The possible filing of an action is doomed to failure if it is brought before the Colombian courts, while recourse to the Hamburg Court may end in a declaration of lack of jurisdiction in the face of a claim. The systemic integration provided for in Article 31(3)(c) of the 1969 Vienna Convention on the Law of Treaties remains unaffected by the fact that the Tribunal hearing disputes in the field of the law of treaties of 1969 has jurisdiction to hear the case. Montego Bay will have to be assessed. It will necessarily have to go through a negotiated solution as well as a legal one if the recognition of a judicial or, more certainly, an arbitral decision is sought.

In any case, it demonstrates, once again, the inadequacy of the conventional international framework in relation to underwater historical heritage.