1AC
Inherency
In 2007, a shipwreck salvaging company named Odyssey discovered the
Mercedes, an old Spanish frigate, in international waters. After being
granted possession of the shipwreck by a US District Court, Spain alleged
that the court’s ruling was invalidated by the Foreign Sovereign Immunities
Act which granted sovereign immunity to Spain because the Mercedes was a
military ship. The 11th circuit Court of Appeals affirmed the new District
Court decision, thus forcing Odyssey to return the salvaged shipwreck to
Spain and setting a precedent against US court determinations of salvaging
rights in international waters
Aznar-Gomez, Professor Public I-law at Universitat Jaume I, ’10 (Mariano, “Treasure Hunters,
Sunken State Vessels and the 2001 UNESCO Convention on the Protection of Underwater Cultural
Heritage” International Journal of Marine and Coastal Law, 25 Int'l J. Marine & Coastal L. 209,
HeinOnline//bueno)
While travelling in a small fleet returning to Spain from South America in 1804, the Nuestra Seriora de las Mercedes
was blown up by the British off Cape Santa Maria, Portugal. Spain was a neutral country at the time, but showing strong signs of declaring war in
The Mercedes Case
alliance with Napoleonic France. A British fleet required the Spaniards to change their course and sail for England. The senior Spanish officer refused, leading to a short battle
during which the Mercedes blew up and sank on the now-Portuguese continental shelf. Two hundred and forty-nine persons died and, after the incident, Spain declared war on
The Mercedes was loaded with approximately 900,000 coins from El Callao and Montevideo. Part of the
cargo belonged to the Spanish Crown; other parts belonged to private persons who consigned them
to a public service then fulfilled by the Navy. Odyssey complained that it discovered the site'- nicknamed the Black
Swan-in March 2007, although it never openly clarified the exact location and never admitted the identification of the site to be the remains of the
Mercedes.20 Odyssey filed an in rem action on 4 April 2007,21 declaring to the press that it had recovered about 17 tons of coins with a value of
about 500,000 $US. 22 During the lengthy process, Peru and twenty-five alleged descendants of those aboard the Mercedes also filed claims against the res. Odyssey
demanded, under the law of finds, possessory rights and ownership over the recovered
cargo; alternatively, under the law of salvage, Odyssey sought an award for its services. 23 Peru claimed to be the legitimate owner of the Spanish Crown's cargo, 24 arguing
England.
particularly the law of State succession, as Peru was part of Spain in 1804.25 Finally, private individuals claimed to be, as descendants of those aboard the Mercedes, the
Spain's arguments were simple:27 (a) the res was undoubtedly
the wreck of the Mercedes, (b) the Mercedes was a Frigate of War of the Royal Spanish Navy; (c) Spain
had not abandoned its sovereign rights over the vessel; (d) under international and domestic US law, foreign State vessels
should be afforded the same legal regime as those of the US; and (e) as a consequence, the court lacked subject-matter
jurisdiction over the res under the Foreign Sovereign Immunity Act (FSIA 28). On 3 June 2009, the
Magistrate Judge of the case made public its "Report & Recommendations" (R&R), entirely upholding the
Spanish legal position. 29 After another period for objections and responses to objections, on 22 December 2009 the
District Judge endorsed the R&R in its entirety as "both eminently correct in his evaluation and highly accomplished in his
legitimate owners of the part of the cargo not belonging to the Spanish Crown.26
presentation of the proposed result."30 The R&R concluded that the res was the Mercedes.31 From that holding, in a highly expressive paragraph that advances the final result,
the Court said that: [t]o the casual observer, it might seem odd that a federal court in this district
would be tasked with adjudicating salvage claims to the remnants of a centuriesold
shipwreck discovered off the European continent in international waters. Two principles-jus gentium
and constructive in rem jurisdiction-explain the case's presence here, and a sensitivity to their rationales when
mixed with the traditional notion of comity in the exercise of extraterritorial jurisdiction colors the analytical perspective for deciding Spain's motion to dismiss.32 Perhaps
the most important argument claimed by Odyssey was that the Mercedes was not
exclusively in non-commercial service when it sank in 1804." Odyssey argued that she
was also engaged in the delivery of private cargo from the colonies to Spain, and that this cargo should be divided among the
different claimants. But, apart from the fact that this service was a public service in 1804, Odyssey had the burden of proving that
this was an exception to the FSIA, thus eroding the immunity principle claimed by
Spain.34 However, arguing from the Republic of Philippines v. Pimentel, the Court reminded the parties that: "[tihe adjudication of the rights of the private claimants
would also necessarily implicate Spain's rights to the property. Such an exercise would frustrate the FSIAs goals and impermissibly prejudice Spain."" Furthermore, as explained
by the Court, "Odyssey's cargo versus vessel approach also departs from traditional admiralty precepts and subverts the plain reading of [FSIA] § 1609. A vessel and its cargo are
inextricably intertwined."36 This was particularly evident in Odyssey's claim, which asks for a warrant of arrest against "the Unidentified, Shipwrecked vessel, its apparel, tackle,
Given that the vessel was a nonabandoned Spanish war frigate subject to
immunity; given that Odyssey did not show any evidence of an exception to the FSIA; and
given that Spain had not waived its immunity in that case, the conclusions were clear for the Magistrate Judge: [i]t is this
appurtenances and cargo.""
comity of interests and mutual respect among nations, whether expressed as the jus gentium (an impetus to exercise judicial authority) or as sovereign immunity (an impetus for
refraining from the exercise of judicial authority), that warrants granting Spain's motions to vacate the Mercedes's arrest and to dismiss Odyssey's amended complaint.38 And
for the District Judge: [t]he ineffable truth of this case is that the Mercedes is a naval
vessel of Spain and that the wreck of this naval vessel, the vessel's cargo, and any human remains are the natural and legal patrimony of Spain and are entitled in
good conscience and in law to lay undisturbed in perpetuity absent the consent of Spain and despite any man's aspiration to the contrary. That the Mercedes is
now irreparably disturbed and her cargo brought to the United States, without the consent of Spain and athwart venerable principles of law,
neither bestows jurisdiction on the United States to litigate conflicting claims of
ownership (to all or part of the cargo) nor empowers the United States to compel the sovereign nation
of Spain to appear and defend in a court of the United States. 39 Odyssey was ordered,
without any kind of compensation, to return the res to Spain within ten days. However, this order
was stayed waiting for a possible appeal. Odyssey declared on 23 December 2009 that it would appeal. Still pending the decision from the appeal, some
conclusions may be traced from this second case. First, with this precedent, admiralty courts in
the US should henceforth be closed to any claim against non-abandoned
sunken State vessels irrespective of the place where they sank (US waters, third-State waters,
international waters). Second, notwithstanding the relative authority of US admiralty courts within the
legal framework of general international law (as of any domestic court),"0 both the Juno & La Galga and
the Mercedes decisions are landmark pieces of jurisprudence which parties might cite in
applying Article 2(8) and other Articles of the UNESCO Convention pertaining to
sunken State craft. Last but not least, these decisions clearly state that private companies cannot
and must not initiate any recovery operations on sunken State vessels without express
consent by the flag State (and the territorial State when necessary). Companies must note that they will not receive any award for unauthorized 'salvage'
operations, notwithstanding the enormous amount of money invested in them. Furthermore, injured States might initiate civil and/or criminal suits.
However, the 11th Circuit ruling was wrong – the Mercedes was a
commercial ship when it sunk, so sovereign immunity should not have been
granted to Spain due to the commercial exception clause to the FSIA. The
only way to allow US courts to grant rights to shipwreck salvage is to alter
the Odyssey ruling’s interpretation of the commercial exception clause to
the FSIA
Burns, JD Candidate Tulane University School of Law, ’12 (Christine, Summer, “Finders Weepers,
Losers Keepers: The Eleventh Circuit Denies Salvage Company's Claims to a Sunken Military Vessel
Found in International Waters in Odyssey Marine Exploration, Inc. v. Unidentified Shipwrecked Vessel”
Tulane Maritime Law Journal, 36 Tul. Mar. L. J. 803, lexis//bueno)
IV. Analysis Although the noted case supports the notion of international comity and sets valuable precedent for future claims involving any country whose military vessels are
the decision also exposes serious concerns regarding the
application of the FSIA and the SMCA to the wrecks of military vessels
engaged in commercial activities. Moreover, the district court's use of constructive in
rem [*813] jurisdiction for disputes involving sunken military craft has the potential to
offend the interested sovereign - unwittingly effectuating a severe setback to U.S.
courts' otherwise careful focus on international comity. The Eleventh Circuit rejected Odyssey's argument that the
currently lying on the ocean floor,
MERCEDES was engaged in commercial activity despite the evidence of large quantities of nonmilitary cargo and ordinary freight-paying Spanish civilians aboard the
MERCEDES at the time of her demise. n68 Because the case involved constructive in rem jurisdiction based on the arrest of foreign property, the court explained that the
applicable section of FSIA was § 1609, which provides, "Subject to existing international agreements to which the United States is a party at the time of enactment of this Act the
property in the United States of a foreign state shall be immune from attachment arrest and execution." n69 However,§§1610 and 1611 list several exceptions to this immunity,
including any foreign property engaged in "commercial activity in the United States." n70 Although it is undisputed that the MERCEDES had never been used for "commercial
the language of the FSIA's declared purpose
establishes that "states are not immune from the jurisdiction of foreign courts insofar as
their commercial activities are concerned." n71 The court declared that the MERCEDES
was not engaged in commercial activity because she was "not acting like an ordinary
private person in the marketplace," even though Odyssey produced evidence that three-quarters of her cargo was privately owned, that she was transporting
nonmilitary Spanish citizens in exchange for a fee, and that she charged a freight rate for numerous quantities of merchant goods. n72 Arguably, the
MERCEDES was behaving like a private actor in the market because she was making a
profit from the civilians and cargo aboard when she sank. Interestingly, the court neglected to discuss the application of
activity in the United States" so as to fall within the purview of this exception,
the SMCA to this issue. n73 Had the court done so, it would [*814] have found that the SMCA provides additional support for exempting vessels engaged in commercial services.
The SMCA explicitly requires a given vessel to have been "on military noncommercial
service" upon sinking in order for the United States and foreign sovereigns to retain title
and interest to their sunken military craft. n74 When the MERCEDES sank, Spain was not at war with Great Britain or any other
country in the region of her demise; therefore, it could be argued that the MERCEDES was not operating in her military
capacity. The warship was arguably engaged in commercial activities rather than
"military noncommercial service" as required by the SMCA, and under this interpretation, the Eleventh Circuit's
holding arbitrarily extends the SMCA's protections in this regard. n75 The
court's interpretation of the SMCA essentially ensures that every vessel
deemed a "military craft" will be vested with sovereign immunity regardless
of the nature of the vessel's actual use when it sank. n76 Thus, the court's reading is at
odds with the basic interpretive canon: ""A statute should be construed so that effect is
given to all its provisions, so that no part will be inoperative or superfluous, void or
insignificant.'" n77 More sunken military vessels are sure to be discovered, and
federal courts should interpret statutes in a way that preserves Congress'
intent while also considering the clearly established regimes of the law of
finds and the law of salvage . In order to obtain jurisdiction over a salvage claim, courts require the property in question be physically
removed from the wreck site and brought in custodia legis. n78 Particularly in disputes involving military vessels, this requirement risks offending the interested sovereign
because military vessels may serve as gravesites for servicemen. For example, in the noted case, there were hundreds of men, women, and children who lost their lives when the
MERCEDES exploded and sank, and as our laws currently demand,
Odyssey was required to recover artifacts from her in
order to establish jurisdiction, presumably necessitating the [*815] disturbance of a gravesite. While this case illustrates the United States' efforts
to extend Spain the respect it would expect regarding its own sunken military craft, U.S. courts ironically demand salvors to first
disturb the underwater gravesite to properly invoke constructive in rem jurisdiction. V.
Conclusion This decision reflects the court's effort to promote international comity while simultaneously reaching a conclusion that will be preferable for the United States in the
courts should not
abandon the familiar cannons of statutory interpretation and disregard the
language of the governing statutes. The commercial exception in the SMCA
and FSIA serve as faint glimmers of hope for commercial salvors, like
Odyssey, who spend significant amounts of time, money, and effort
pursuing underwater discoveries only to walk away empty-handed when
courts misapply the statutes' protections to military vessels that were
actually engaged in commercial services. Courts should aim to compensate the
discoverer of valuable vessels - whether their intentions are commercial, cultural, archaeological, or scientific - for the simple
reason that a claiming sovereign has not expended the necessary efforts to find its
sunken vessels. Additionally, courts should "wade carefully" when extending jurisdiction over international waters. The premise for exercising extraterritorial
future, if and when foreign sovereigns or independent commercial salvors discover sunken U.S. military property. However,
the law of salvage is so widely recognized that a foreign court would enforce
the order of a U.S. court as part of the international general maritime law. However, while it is
jurisdiction is that
undeniable that the law of salvage is an ancient and revered part of general maritime law, its application to shipwrecks in international waters is relatively uncharted. As a result,
courts will continue to wrestle with this issue while trying to construct a legal regime
that fully recognizes and protects all of the competing interests in a valuable shipwreck
located in international waters.
Plan
The United States federal judiciary should interpret the commercial
exception clause of the Foreign Sovereign Immunities Act as invalidating
the United States Court of Appeals Eleventh Circuit Court ruling in Odyssey
Marine Exploration, Inc. v. Unidentified Shipwrecked Vessel.
FSIA Advantage
Advantage 1 – FSIA
The Odyssey ruling set a precedent that broadened the scope of sovereign
immunity from citizen suit – the aff re-establishes the strength of the
commercial exception clause which limits this sovereign immunity
Song, Senior Staff Member American University Law Review, ’13 (Zhen, August, “Going For Gold: The
Meaning of "Commercial Activity" in the Foreign Sovereign Immunities Act in the Race for Buried
Treasure in Sunken Shipwreck” American University Law Review, 62 Am. U.L. Rev. 1771, lexis//bueno)
II. The Decision of the Eleventh Circuit in Odyssey Runs Counter to the Sovereign Immunity Doctrine's Development of a Limited Reach of Jurisdictional Immunity Over
The Supreme Court's reading of the FSIA's commercial activity exceptions, as
in Weltover and Nelson, indicates the adoption of and adherence to a
restricted approach to granting sovereign immunity in actions involving
commercial activity. n155 The analytical frameworks set forth in Weltover and Nelson require a two-step analysis. n156 The first step is identifying the
Commercial Activity
demonstrated in its decisions
specific [*1795] government conduct subject to the commercial activity analysis. n157 The second step is applying the Weltover "private person test" to the identified act to
The Eleventh Circuit's commercial activity analysis in
Odyssey incorrectly construed the "private person test," leading to the conclusion that
the Mercedes was engaged in non-commercial service when it sank. n159 An accurate
application of the two-step analysis for commercial activity would not have led the
Eleventh Circuit to characterize the Mercedes as a Spanish military vessel entitled to
sovereign immunity. n160 A. The Supreme Court Intended to Set a Broad Scope for Interpreting Commercial Activity and Limit the Applicability of
Sovereign Immunity The significance of having a clearly defined scope of commercial
activity and the impact of the Odyssey decision on that scope are best
viewed in light of the history and evolution of the sovereign immunity
doctrine. n161 While the concept of sovereign immunity developed as a way to maintain
diplomatic relations among members of the international community, n162 contemporary approaches taken by
Congress, the courts, and the international community have extensively limited the
scope of the doctrine. n163 In enacting the FSIA and codifying the restrictive theory of
sovereign immunity, Congress provided uniform standards for sovereign immunity
claims. n164 Perhaps more importantly, the FSIA prescribed all the circumstances [*1796] under which a foreign state can be subjected to the jurisdiction of U.S. courts.
n165 This shift from a complete bar on exceptions to sovereign immunity toward
acknowledgement and codification of numerous exceptions demonstrates Congress's
willingness and commitment to significantly limit the scope of the doctrine. n166 When first
ascertain whether it is "commercial activity" under the FSIA. n158
confronted with the task of defining the scope of "commercial" within the FSIA, the Supreme Court acknowledged that the language of the FSIA did not offer a clear definition of
in keeping with congressional intent, the Weltover Court looked to the
legislative history of the FSIA and the circumstances that gave rise to the restrictive
theory for guidance on how to interpret the meaning of "commercial activity." n168 The
Court reasoned that its interpretation of the scope of "commercial activity"
had to conform to the restrictive theory emerging at the State Department
and in the lower courts, which had already begun the practice of carving out exceptions to immunity at the time Congress enacted the FSIA. n169
Therefore, the Weltover Court broadly construed the limits of "commercial activity" via the
adoption of the "private person test." n170 This interpretation widened the scope of
activities that qualify for the commercial activity exceptions, thereby corresponding with
Congress's objective in enacting the FSIA. n171 [*1797] The subsequent Nelson decision highlighted the Court's efforts to further refine
"commercial activity." n167 Thus,
the application of the commercial activity exceptions. The Nelson Court particularly underscored the point that the FSIA's "based upon commercial activity" language requires
that such activity have more than a tenuous connection to commerce. n172 Rather than explicitly restricting the boundaries of "commercial activity," the Court narrowed the
scope of conduct relevant in the analysis of whether a claim is "based upon" commercial activity. n173 This in turn implied that "commercial activity" should be broadly
The Nelson Court's two-step analysis created an
interpretive framework for determining commercial activity. It requires courts to strike a
delicate balance between the necessity of continually limiting the reach of the sovereign
immunity doctrine and the drawbacks of an all-encompassing definition of commercial
activity. n175 When resolving questions of sovereign immunity in cases that raise a commercial activity exception, the Supreme Court has
consistently limited the application of the doctrine. n176 B. Altering the Boundary of Commercial Activity: Odyssey's Flawed
Application of the Weltover "Private Person Test" 1. The "based upon" test and Nelson Using the narrow scope of Nelson's "based
upon" test to identify the precise government act relevant to the commercial activity analysis should reveal that the claim for the
Mercedes was based upon acts and services performed during its last voyage across the
Atlantic. n177 Spain argued that at the time of its sinking, the Mercedes [*1798] was a Spanish Royal Navy Frigate commissioned by the Spanish government and
interpreted so as to limit the application of sovereign immunity. n174
operated by naval officers on a mission to collect funds from the Spanish Viceroyalties. n178 Therefore, the Mercedes should be characterized as a "warship" engaged in military
noncommercial activity and granted immunity from judicial arrest under § 1609 of the FSIA because no commercial activity exception applied. n179 This focus on the reason
behind Mercedes' trip to and from Peru merely goes to the but-for cause of its demise in the same way that Nelson's employment contract was the but-for cause of his injuries.
Just as the Nelson Court was unpersuaded by the argument that Nelson's claim was
based upon his employment at the Saudi hospital, n181 the claim against the Mercedes
should not have been based upon the Spanish government's need to collect funds for its
treasury. n182 Instead, the court should have separated the Spanish government's reasons for
dispatching the Mercedes to Peru from the specific act the ship engaged in and judged
that act in light of the Weltover "private person test" to determine whether that act was
commercial in nature. n183 Furthermore, it was not necessary for the court to determine that the Odyssey case was based entirely on Spain's commercial
activity. n184 So long as one element of Mercedes' final mission involved activity that was
commercial in nature, the Eleventh Circuit should not have rejected Odyssey Marine's
commercial activity argument. [*1799] 2. Applying the "private person test" to Odyssey In determining whether the Mercedes was engaged in
n180
commercial activity, the Eleventh Circuit initially looked to Weltover for guidance. n185 The court specifically noted that any analysis of the commercial character of an act
demands a distinction between the nature and the purpose of that act. n186 However, when the court began considering the facts of the case, any adherence to the Weltover
Rather than basing its conclusion on an objective commercial activity
analysis of the facts presented, the court accepted Spain's skewed characterization of the
Mercedes' final voyage. The court emphasized that the Mercedes was a registered Spanish Navy vessel under the command of a Spanish Navy captain
decision disappeared. n187
when it sank. n188 Its crew consisted of naval personnel, including officers, sailors, and marines. n189 However, evidence indicated that the gun decks of the Mercedes, an
alleged "warship," were altered to make room for additional paying passengers. n190 Civilian officers were among members of the crew, which was a prohibited practice under
Spanish naval regulations during actual wartime. n191 With the exception of a small portion of government-owned cargo, the majority of the cargo on board the Mercedes
belonged to private Spanish citizens; n192 a fact so indisputable that even Spain's historical expert acknowledged it in a book he published prior to his involvement with the case.
The court held that the Mercedes' transportation of private cargo for a fee was a
distinctly sovereign act because historians claimed that one of the military functions of
the Spanish Navy in times of war or threatened war was to protect Spanish citizens and their
property [*1800] during their voyage across the Atlantic. n194 While it may be true that the Spanish Navy dispatched many ships to serve this exact purpose, the facts
and circumstances surrounding the Mercedes' last voyage do not support Spain's
assertion that it was performing a non-commercial military service when it sank. First, the
n193
Mercedes' manifest and all Bills of Lading n195 for the cargo held titles of "Commercio Libre," meaning "Free Commerce." n196 This is indicative of the commercial nature of the
in the aftermath of the sinking of the
Mercedes, the Spanish government publicly denounced Britain's attack on the ship
because "it was being used to transport passengers and cargo, not as a warship." n197 When the
activity in which the vessel was engaged. Additionally, historical evidence revealed that
Mercedes sank, Spain encouraged treating those who lost assets onboard as "private claimants ... [whose] only recourse was to seek relief from the British government." n198
These facts show that Spain acknowledged the Mercedes' status as something other than a warship immediately prior to its sinking, and suggest that Spain was not exercising
military power unique to a sovereign. Despite strong evidence to the contrary, the Eleventh Circuit applied the Weltover "private person test" to the facts of Odyssey and reached
the questionable conclusion that the Mercedes was not engaged in commercial activity when it sank. n199 In the court's view, "the Mercedes was not acting like an ordinary
private person in the marketplace." n200 However, what the court failed to consider was that under the Weltover "private person test," the relevant inquiry for determining
commercial activity is whether a sovereign's act is the type of activity in which a private party can also engage. n201 It matters [*1801] not whether a private party did or did not
In the case of Odyssey,
whether a private party can also engage in the same activities as those
carried out by the Mercedes must be answered in the affirmative, thus
engage in that activity. n202 Rather, what matters is that a private person could act in the same way. n203
making it commercial activity. n204 The Mercedes charged private citizens a fee for transportation of their personal properties, which
accounted for over seventy-five percent of the cargo on board. n205 Drawing on Weltover's example qualifying a government's purchase of army boots or bullets as commercial
activity because a private consumer could make a similar transaction, the Spanish Navy's transportation of its private citizens and their personal properties and assets should
also have been considered commercial activity because a privately owned shipping company could have just as easily been hired to perform the same service. n206 In addition,
Justice White's concurrence in Nelson suggested that activities typically attributed to sovereigns, such as the exercise of police power, could be considered commercial
depending upon the circumstances. n207 Therefore, the Eleventh Circuit should not have allowed Spain's classification of the Mercedes as a warship to control its commercial
the fact that a private
shipping company could have engaged in the activity indicates that it was the nature of
the activity that was commercial, not the purpose. n208 Because the act of transporting privately owned property is not [*1802]
activity analysis. Moreover, with respect to the nature versus purpose dichotomy of the commercial activity analysis,
inherently sovereign in nature, the Eleventh Circuit should have concluded that the Mercedes was engaged in commercial activity when it sank. 3. Salvaging the restrictive
theory of sovereign immunity Even if the Eleventh Circuit had concluded that commercial activity was involved, the question still remained whether the Mercedes was entitled to
the court quickly dismissed Odyssey Marine's argument that the Geneva Convention provided for a
could have arrived at an
entirely different conclusion had it considered the issue in light of the evolution of the
sovereign immunity doctrine within the United States and internationally. The Geneva Convention
immunity from arrest under § 1609 of the FSIA. Although
commercial activity exception to immunity from arrest under § 1609 for state-owned and operated vessels, n209 it
became law in the United States long before the enactment of the FSIA in 1976. n210 Yet, at the time, the United States was no stranger to a developing restrictive theory of
sovereign immunity. n211 By reconciling the United States' ratification of the Geneva Convention with other legislative and judicial actions, one can argue that
becoming a party to the treaty was simply another step toward limiting the scope of the
sovereign immunity doctrine. n212 The language of the Geneva Convention suggests that
state-owned and operated vessels are not entitled to claims of sovereign immunity
merely because of the sovereign nature of their owner. n213 [*1803] Given this historic progress
toward limiting the applicability of sovereign immunity, the Odyssey court erred when it
failed to take into account the implications of the Geneva Convention. Because § 1609 of the FSIA subjects
the grant of immunity from arrest to the Geneva Convention, n214 the court should have seriously considered the
contention that the treaty created a commercial activity exception under the
FSIA. n215 In addition, the court did not discuss the applicability of the SMCA in its commercial activity analysis. n216 Had the court entertained the SMCA's treatment of
military vessels engaged in commercial activity in terms of sovereign immunity, it may have found further support for both the argument that the Mercedes was engaged in
The
Eleventh Circuit's decision in Odyssey has potentially significant consequences for
the futures of the commercial activity analysis and the salvage of historic
shipwrecks. As Odyssey Marine demonstrated, shipwreck salvage efforts can be both time-consuming
and costly. n218 This is especially true for historic shipwrecks because of the uncertainty over the precise location of the wreck, and a greater likelihood that the vessel
commercial activity and that the Geneva Convention created a commercial activity exception to § 1609's immunity to arrest state-owned vessels. n217 Conclusion
and artifacts are scattered over the ocean floor. n219 Because the passage of time does not affect a State's [*1804] property interest in its sunken military vessels like the
allowing foreign states to
claim sovereign immunity for any ship that may be characterized as a state-owned or
military vessel without regard to the nature of its use prior to sinking will
disincentivize future salvage of sunken state-owned vessels or vessels whose
ownership are in dispute or unknown. n221 A potential compromise for preserving sovereign immunity for sunken state-owned vessels
Mercedes, any money and time spent on salvaging these shipwrecks will likely go uncompensated. n220 Therefore,
without deterring private salvage companies like Odyssey Marine from continuing their work would be to offer a reward or compensation for salvage efforts. n222 The progress
foreign states are no longer afforded unqualified
protection from the jurisdiction of U.S. courts. Congress's codification of the restrictive
theory of sovereign immunity via the enactment of the FSIA demonstrates its intent to
impose significant limits on the doctrine, especially with regard to commercial activities of foreign states. Moreover, the
Supreme Court's decisions in both Weltover and Nelson conform to this shift towards
restricting the applicability of sovereign immunity. Odyssey suggests that state ownership and involvement, combined with a
of the sovereign immunity doctrine since the 1950s indicates that
non-commercial motivation, are sufficient for an act to be characterized as "sovereign" rather than "commercial." n223 While it is [*1805] possible that the court's decision
reflected its effort to appease Spain and promote international comity, and thereby signal an expectation that other nations who discover sunken U.S. warships will do the same,
the Eleventh Circuit's commercial activity
analysis runs counter to the progress Congress and the Supreme Court have
made in limiting the scope of sovereign immunity; a development that will further
confuse the application of the interpretive frameworks for the FSIA's commercial
it is nevertheless contradictory to the Weltover "private person test." n224 More importantly,
activity exceptions. n225 To avoid setting a troubling standard for future
determinations of sovereign immunity, courts should apply the two-step
analysis developed in Weltover and Nelson, and adhere to the principle that
if a sovereign acts like a private party when engaging in commerce, it
should be treated like one under the FSIA.
State-owned oil companies abuse the current interpretation of sovereign
immunity to monopolize global oil markets – strengthening the commercial
exception clause reverses that
Riblett, Associate International Arbitration at Freshfields Bruckhaus Deringer US LLP, ‘ 8 (Phillip, Fall,
“A Legal Regime for State-Owned Companied in the Modern Era” Journal of Transnational Law and
Policy, J. of Transnational Law & Policy,
http://www.law.fsu.edu/journals/transnational/vol18_1/riblett.pdf//bueno)
cases involved state-owned oil companies that the FSIA provides with immunity,
yet the state itself also enjoys the benefits of corporate separateness. The activities in
which these entities engage are fundamentally commercial, yet they compete with other companies
in the market with the benefit of presumed immunity. In an age when SOCs exert immense power and influence, their ability
to assert immunity seems less appropriate with each passing day on which the
price of a barrel of oil rises. C. The Use of Subsidiaries by Sovereigns SOCs, particularly those in the oil and gas
industry, are increasingly influential. The far-reaching power of the Standard Oil Trust, followed by the dominance of its former constituent
parts that begot Exxon, Mobil, Chevron and others, long ago ceded control of much of the world’s oil reserves to host governments.109 Not only do SOCs
control the vast majority of the world’s oil and gas reserves,110 but they are also
venturing out to invest internationally. For example, in 2002, China formally adopted a policy of encouraging its three main state-owned
Each of these
oil companies to engage in global exploration projects.111 Moreover, with 84% of global growth in oil production over the next decade occurring in fifteen countries— only one of
which, Canada, freely permits private exploration and development—
the amount of reserves controlled by SOCs will only
increase.112 The power of SOCs is not limited to oil companies such as Saudi Aramco, PdVSA, Pemex, National Iranian Oil Company, Kuwait Petroleum Company, Abu
Dhabi National Oil Company, Nigerian National Petroleum Company, Gazprom, Rosneft, Chinese National Petroleum Company, Petrobras, and Statoil, to name a few. Indeed,
SOCs are active market players in telecommunications, banking, and numerous other sectors. While it is true that political or foreign policy reasons creep into (or in some cases,
dominate) the commercial decisions of SOCs, for the most part such companies are market players in the same manner as their more traditional, non-state counterparts. SOCs
participate in the international economy in a significant way, and they structure their holdings and investments much the same as traditional companies do. In order to
demonstrate these characteristics of SOCs, it is helpful to consider three specific cases: (1) the Middle East (based upon a study of SOCs from five countries in the region); (2)
Russia; and (3) Brazil. Fundamentally, while the bureaucratic nature and at times politically driven decision-making of SOCs distinguish them from their non-state counterparts,
Saudi Arabian oil
production, resulting in more oil exports than any other country in the world,113 is spearheaded by the state-owned oil
company, Saudi Aramco.114 Aramco has recently been initiating joint ventures with private investors in downstream activities in Saudi Arabia.115
at their core SOCs are commercial entities that interact with the marketplace much as traditional companies do. 1. The Middle East
Additionally, Aramco has interests in refineries in the United States, China, South Korea, Japan, and the Philippines.116 Its U.S. interests include three refineries in Louisiana
and Texas that it holds jointly with Royal Dutch/Shell.117 Of course, Middle Eastern oil power is not limited to Saudi Arabia. A study conducted by Dr. Valérie Marcel (Principal
Researcher with the Energy, Environment and Development Programme at Chatham House, home of the Royal Institute of International Affairs in London) from 2003 to 2005,
involving numerous interviews with executives of the state oil companies of Saudi Arabia, Kuwait, Iran, Algeria, and Abu Dhabi, yielded much helpful information regarding how
these SOCs “want to operate like [international oil companies],
though they are clearly national companies with public ownership of capital, special status in the
hydrocarbon domain, obligations to the national market and a common history.”119 While these companies “wish to be seen as independent commercial entities . . . [they]
play on their government’s relationship with the host country’s authorities to obtain
deals.”120 Dr. Marcel described the necessity for “clear distinction between the roles of each institution” (the SOC and its government owner): Strategy is the plan of action
such SOCs function.118 Dr. Marcel found that
by which the operator, that is, the national oil company, the international oil company, or both set out how they will achieve the targets established by government. The potential
blurring between the roles of government and [SOC] arises because the state is the shareholder of the company and, as such, participates in the strategymaking process. The
state may indeed be represented on the supreme petroleum council (SPC), which approves the strategic plan, and on the company’s board, which manages day-to-day
If the state is involved excessively in the management of operations, the national
oil company’s decisions will be relatively more influenced by political objectives,
presumably to the detriment of commercial considerations.121 As described by a Saudi Aramco manager, “[w]e don’t
operations.
set government policy (in relation to OPEC in particular). We make sure we don’t get sucked into their process. It’s better to divide these roles. We deliver the goods.”122 In
Kuwait, on the other hand, Dr. Marcel found that “political interference hampers operations.”123 Ultimately, Dr. Marcel concluded that “[SOCs] are now competing directly with
[international oil companies] for projects and investment opportunities overseas, long the preserves of the supermajors.” 124 Moreover, “[i]n today’s high oil price environment,
“[SOCs] are proving
themselves able to compete head-on with [international oil companies] in everything from
they have also been able to leverage their influence to an extent not seen in recent years.”125 Finally, she noted, tellingly, that
field development to mergers and acquisitions.”126 2. Russia Perhaps the most intriguing and politically complex example of how states utilize SOCs is presented by Russia.
Gazprom and Rosneft, the largest Russian gas and oil companies respectively,127 are critical strategic parts of a
newly assertive Russia. Indeed, that Russia’s new President, Dmitri Medvedev, came to the presidency directly from his position as Gazprom
chairman is not an insignificant fact.128 These companies no doubt benefit significantly from their positions
as Russia’s favored sons; fully two-thirds of Rosneft’s production comes from former Yukos property seized by the Russian authorities.129 At the same
time, their commercial policies tend to be aligned with the politically motivated directives
of the Kremlin, as when Gazprom halted gas supplies to Ukraine following Ukraine’s
turn westward130 or when Transneft (a Russian SOC that manages pipelines) slowed the flow of oil to the Czech Republic following that country’s discussions
with the United States regarding installation of missile defense radar detection equipment on Czech territory.131 Gazprom extracts more natural gas than any other company in
the world.132 It also possesses the largest natural gas reserves and the largest gas transmission system in the world.133 The Russian government holds a 50.002% interest in
Gazprom,134 whose stated goal is to “surpass Exxon Mobil as the world’s largest publicly traded company” by 2014.135 Rosneft, meanwhile, was created in 1993, inheriting
assets once held by the USSR Ministry of Oil and Gas.136 In 1995, Rosneft was opened to partial private ownership.137 In recent years Rosneft has frequently acquired new oil
assets within Russia—often owing to opportunities opened up by its parent, the Kremlin. In 2006, Rosneft engaged in a restructuring that involved the consolidation of twelve
subsidiaries.138 Additionally, it conducted a large IPO, placing approximately 15% of its shares in London and Moscow and raising about US$10.7 billion.139 As for Gazprom’s
international reach, much like a traditional multinational company, Gazprom owns numerous global assets, particularly gas distribution companies in Europe, including
companies in Germany, the Czech Republic, Finland, Hungary, Italy, and the United Kingdom, among others.140 Gazprom is also engaging in exploration and production in
Venezuela, Libya, and Algeria. 141 Finally, Gazprom is in the retail supply business in the United Kingdom, Denmark, France, Scandinavia, and Hungary, and also has a
subsidiary in Houston that markets LNG and natural gas.142 In all, Gazprom has founded approximately sixty subsidiaries and also owns—wholly or in part—approximately 100
While Gazprom enjoys numerous advantages due to its ownership by
the Russian government, and its business decisions are at times driven by political policy, it functions much like a nonstate company. Gazprom has a sophisticated corporate structure, is owned by international shareholders, has invested in various countries around the world, and
enjoys numerous commercial relationships. Regardless of the source of its power, its activity is essentially commercial. 3. Brazil Brazilian SOC Petrobras (the Brazilian
government holds 55.7% of its voting shares) controls more than 95% of Brazil’s crude oil production and is
involved in all aspects of Brazil’s oil sector.144 Petrobras operates in twenty-three countries outside of Brazil. Included in
its international operations are “interests in 331 offshore blocks in the United States”
and a 50% interest in a Texas refinery.145 Petrobras also owns a Cayman Islands company, Petrobras International Finance Company, that
Russian or foreign companies.143
“acts as an intermediary between third-party oil suppliers and [Petrobras] by engaging in crude oil and oil product purchases from international suppliers, and reselling crude oil
and oil products in U.S. dollars to [Petrobras].” 146 Petrobras has over two dozen direct and indirect subsidiaries. 147 Many of them are incorporated in Brazil, but several are
Each of these
examples involves companies whose essential purpose is commercial. There are, of course, several notable
incorporated in the Cayman Islands, the Netherlands, the United Kingdom, Bermuda, and Singapore.148 4. Trends from the Three Examples
differences between these companies and traditional companies. For one, in the case of SOCs, dividends find their way into the national budget. To draw from a case discussed
political
considerations can often drive decision-making. At their core, though, SOCs are
fundamentally commercial. These companies engage in IPOs, have sophisticated corporate structures, invest in numerous ventures around the world,
and otherwise engage in complex financial transactions. There is little justification for endowing these companies
with such significant advantages over their non-state counterparts. The nature of these advantages is explored
earlier, dividends from Pemex constitute approximately 40% of the Mexican national budget. 149 Additionally, as seen in particular with Gazprom and Rosneft,
further in the following section. D. The Current Exceptions to Immunity As discussed above in Section I.A.2, the FSIA is based upon a system whereby certain entities enjoy a
If the opposing party can demonstrate the existence of an applicable
exception to immunity, the entity is not immune. Despite the availability of these
exceptions, in many cases it is actually quite difficult for parties suing or
attempting to attach the assets of an SOC to establish an applicable
exception. As a result, the initial presumption of immunity is a significant
advantage for SOCs. First, and most importantly, the advantages with respect to immunity from
execution enable an SOC to resist attachment or execution in a way that non-state
companies cannot. Second, the commercial activity exception to immunity from jurisdiction
can be difficult to establish. Finally, because courts are nervous to tackle issues that potentially impact U.S. foreign policy, the expropriation exception
presumption of immunity.
provides them with yet another way to avoid hearing cases addressing issues such as takings under international law.
Allowing suits against national oil companies is key to stopping resource
nationalism
Mutschink, JD Southern Methodist University, ’10 (Mark, Fall, “Facing the Future of Oil in U.S.
Courts: A Recommendation for Changing the Bremen Doctrine on Enforceability of Forum Selection
Clauses” SMU Law Review, 63 SMU L. Rev. 1343, lexis//bueno)
National oil companies are the historical products and the modern
agents of resource nationalism among the oil producing nations of the world. n73 Professor Paul Stevens's recent
2. National Oil Companies and the Rise (Again) of Resource Nationalism
article gives a very good historical breakdown of the cyclical nature of resource nationalism and the many factors driving the cycle. n74 Professor Stevens's definition of resource
asserting a greater national
control over natural resource development." n75 This definition is useful because it is very easy to identify which NOC actions fall
nationalism has "two components - limiting the operations of private international oil companies (IOCs) and
within the bounds of resource nationalism. Whether resource nationalism is a motivating factor behind the acts of NOCs is important to this discussion because acts of resource
resource nationalism is alive and well
in many parts of the oil producing world. n77 In 2007, when oil prices were high and climbing, n78 PDVSA and Venezuela nationalized
the oil fields of many western oil companies. n79 During this time period, Venezuela used oil income to increase spending on
domestic social programs and weapons purchases. n80 Also during this time, Iran was able to push back against
United Nations economic sanctions, and Russia stopped exports of natural gas to the
Ukraine to send a political message. n81 All of these acts include elements of sovereign power and policy funded by the respective countries'
nationalism are more akin to state action than private action. n76 [*1351] Recent history shows that
NOCs. n82 There are several examples of recent NOC acts that have the characteristics of state action, such as nationalization of IOC oil fields, which can be construed as
resource nationalism at work. n83 One of the most infamous of these examples occurred in 2007 when PDVSA took majority stakes in oil projects in the Orinoco Basin. n84 Two
IOCs, including Exxon, refused to accept the new contracts and instead demanded arbitration under their contracts with PDVSA. n85 Exxon also aggressively pursued
attachment of PDVSA assets abroad and succeeded in freezing billions of dollars of PDVSA's assets in the U.S., Dutch, and British courts. n86 Exxon's tactic was understood as
both a move to pressure PDVSA into better terms over the Orinoco Basin project and a signal to other NOCs that Exxon would aggressively fight resource nationalism anywhere.
n87 However, in a limited victory for PDVSA, the British injunction freezing up to $ 12 billion was overturned on appeal while the U.S. and Dutch injunctions appear to remain
intact. n88 As of the time of this comment, the case remains docketed for arbitration in the International Centre for Settlement of Investment Disputes. n89 PDVSA's action fits
the definition of resource nationalism nicely n90 because it limited the involvement of the world's largest IOC and asserted greater control over the oil reserves in [*1352] the
resource nationalism is not just a concern of the
mega IOCs anymore. n92 Petrosucre, a subsidiary of PDVSA, fell behind on payments due under a drilling contract with Ensco International Inc., a drilling
Orinoco River Basin. n91 A more recent act in Venezuela demonstrates that
service company. n93 Ensco suspended drilling operations on its ENSCO 69 drilling rig in January 2009 because of Petrosucre's failure to make payment on past-due invoices of
up to $ 35.5 million. n94 However, Petrosucre continued to operate ENSCO 69 with its own crews. n95 In May 2009, Ensco terminated the drilling contract with Petrosucre, but
Petrosucre stated it would continue to operate the ENSCO 69 drilling rig. n96 Ensco followed up by announcing that it did not foresee the return of ENSCO 69, had filed an
insurance claim, and was "evaluating legal remedies against Petrosucre for contractual and other damages related to the rig's seizure." n97 It appears that the two sides
eventually came to a settlement, with PDVSA agreeing to pay Ensco $ 50 million, although it is unclear whether Ensco has regained control of ENSCO 69. n98 Interestingly,
Ensco's most recent list of its drilling rig assets does not include the ENSCO 69 rig. n99 PDVSA also took over operations of private natural-gas-compression plants in early June
2009. n100 The involved companies sued PDVSA in a New York state court to enjoin the NOC from drawing on lines of credit set up for the original joint venture. n101 The
status of the case is unclear at this time. All told, PDVSA nationalized the assets of more than seventy oilfield services companies between January and August 2009. n102
However, the cyclical nature of resource nationalism is becoming more evident, as the recent decrease in global oil prices has placed many of the oil producing countries and
their NOCs in a "reverse oil shock." n103 As a result, many of these countries' NOCs are inviting IOCs, as well as other [*1353] NOCs, to negotiate for oil-field leases once again.
n104 For example, Russia's NOCs recently signed a multi-billion dollar investment deal with China. n105 Libyan officials are courting foreign investors, including western oil
companies, but at the same time they will not rule out the possibility of nationalizing energy interests in the country. n106 Even Venezuela and PDVSA are interested in getting
To successfully negotiate with NOCs, IOCs and the
more recently targeted oilfield services companies need clearly articulated
legal rules affecting NOCs. They need clarity on the legal standing of NOCs
in U.S. courts. They also need clarity on whether forum selection clauses are
enforceable. This can be, and should be, a very important negotiating point since
"dealing with a sovereign foreign government in its own state-controlled judicial system
can be trying, to say the least." n108 The lack of a clear legal framework for NOCs in the U.S. legal system may be one reason IOCs tried to renegotiate the project
terms in Venezuela's Soledad bidding to include international arbitration. n109 However, it may be especially difficult to win an
arbitration clause in negotiations, given NOCs' state and economic power n110 combined
with reticence to resolve disputes outside their own legal systems. n111 One suggestion for improving the U.S.
IOCs to invest in a new oil-field project in Soledad. n107
legal system's treatment of state-owned companies is to amend the FSIA. n112 However, this comment focuses on the current version of the FSIA and recommends a change to
the law of forum selection clauses as an alternative that is easily adoptable through the common law.
That causes oil price volatility that prevents investment in biofuels
Golden, Precourt Institute for Energy at Stanford University, ’12 (Mark, February 15, “State-Owned
Oil Companies Increase Price Volatility and Pollution, but Rarely Get Used as Geopolitical Weapons, says
Stanford Researcher” http://ren21plus.ren21.net/node/114679//bueno)
oil-rich governments often lean on their national oil companies in ways that
hurt the environment, damage their companies’ efficiency and raise prices for the rest of
the world, according to Stanford University researcher Mark Thurber. The state-owned oil companies, like Saudi Aramco, Petróleos de Venezuela and China National
To maintain power,
Petroleum Corp., control 73 percent of the world’s oil reserves, dwarfing the ExxonMobils of the world. Beyond just producing profits for their central governments, the national
oil companies (known as NOCs) are often saddled with tasks such as heavily subsidizing domestic energy consumption and employing thousands of unneeded workers with good
“You might think that the NOCs would be good for the environment because
they are partly the cause of today’s high oil prices, and high prices should lead to less consumption and less pollution, but
that isn’t the case,” said Thurber, co-editor of, and contributor to, the new book Oil and Governance: State-Owned Enterprises and the World Energy Supply
(Cambridge University Press, 2012). Subsidized Gasoline and Natural Gas Large subsidies from NOCs for fuel use at home
lead to massive overconsumption. Gasoline is almost free in Venezuela. Within Russia, Gazprom sells natural gas for a fraction of the price it
charges Western Europe, according to Oil and Governance. The International Energy Agency estimates that elimination of such government
subsidies alone would get the world almost halfway to targeted reductions in
greenhouse gas emissions by 2020, Thurber noted last week when speaking at Stanford’s weekly Energy Seminar. Another adverse
effect for the environment: state-owned companies contribute to fuel price volatility. The rollercoaster between high and low oil prices may discourage large investments
in competing energy sources like greener biofuels . Price volatility can derive
from the following dynamic: in high price periods, governments tend to use their NOCs
to dispense privileges to influential elites or subsidize development programs that curry
favor with the broader population, but by leaning on NOCs for these functions in times
of high prices, governments depress investment in new oil fields just when additional
output is needed most, according to the book. Only in lower price periods do governments place greater value on the efficiencies achieved by private
players in oil production, which expands supply when it is not needed as much. Overdependence on NOCs to further regime
survival robs them of autonomy, focus, and investment capital. One of the new book’s most striking findings is the
political connections.
clear correlation between companies’ performance as oil enterprises and the non-energy related burdens host governments put on them, like providing social programs, political
patronage, and private security for elites. Low Performers in Iran and Venezuela Low-performing NOCs have high non-energy burdens. Two of the lower performers, the oil
companies of Iran and Venezuela, have seen their ability to find oil and produce it efficiently decline markedly under the meddling of presidents Mahmoud Ahmadinejad and
Hugo Chávez, the book finds. In both cases, reasonably proficient managers have been replaced with political cronies. Companies with fewer non-energy burdens, on the other
hand, can do quite well. Two companies in the latter group – Norway’s Statoil and Brazil’s Petrobras – are as capable in their areas of expertise as any private oil company,
according to the 1,000-page volume, which was commissioned by Stanford’s Program on Energy and Sustainable Development, where Thurber is associate director of research.
The book comprises case studies of 15 NOCs, as well as several chapters analyzing why some of the companies perform so much better than others. Defying conventional
wisdom, the book finds little evidence that NOCs are effective geopolitical tools for their host governments. In fact, managers at the companies often try to keep politicians as far
removed as possible from oil operations. NOC expansion abroad typically has as much to do with the NOC’s desire for autonomy as it does with the global designs of politicians.
And even where politicians desire to use NOCs as geopolitical instruments, they find themselves limited by the realities of what it takes to find, extract, and deliver
hydrocarbons.
“The largest political impact of host governments on their NOCs is not in using them as tools
the adverse impact on these companies’ ability to find and produce oil,” the
for foreign policy. Rather, it is
editors of Oil and Governance conclude.
Investment in biofuels solves warming and food prices
Yulsman 7 – Professor @ UC-Boulder (Tom, “Grass is Greener,” Audubon Magazine, Sept/Oct,
http://www.audubonmagazine.org/articles/climate/virtues-switchgrass-alternative-fuel?page=1)
If all goes well (no trivial if), within five years or so farmers may begin replacing corn and other crops now grown on degraded land, or on land only marginally suitable for
If recent research by Tilman and others pays off,
we may eventually see farmers replanting not just with switchgrass but with a diverse array of grasses
and other plants, re-creating something akin to the native prairies first encountered by the pioneers on their way west. The goal: replacing
gasoline with ethanol that would reduce global warming while also helping
struggling farm economies, restoring soil fertility, and improving habitat for
imperiled grassland birds and other species.¶ Steve Fransen, a Washington State University (WSU) forage agronomist, is one of the
agriculture (because of its vulnerability to erosion and other factors), with cultivated fields of switchgrass.
researchers working to make this vision a reality. On a warm July morning beneath southeastern Washington's Horse Heaven Hills, he stoops beside a lush three-acre plot of
head-high switchgrass. Parting the thick growth, he fingers dozens of green blades growing from a single plant. "You can see here why
switchgrass produces
much more biomass than corn"--a key attribute that could help this tallgrass prairie species supplant corn as a raw material for producing ethanol,
a form of biofuel. Fransen is experimenting with ways to cultivate switchgrass 1,000 miles west of its native Midwestern home, with help from a little irrigation. The soils here in
the Yakima River valley are drier--so dry, in fact, that it takes two years for the earth up in Horse Heaven to accumulate enough moisture for wheat to be grown successfully. So if
switchgrass can make it here, it can make it anywhere.¶ "
We're making real progress," Fransen tells me as we walk among the plots at WSU's
Irrigated Agriculture Research and Extension Center in Prosser. "When we harvest this grass in a day or so, I think we'll get a yield of five tons per acre." With a second harvest
in the fall, the annual yield should be 10 tons per acre. That much biomass translates into more than 1,000 gallons of ethanol--enough fuel to keep a hulking Hummer H2 rolling
for 16,000 miles.¶ But
it won't mean much unless farmers choose to cultivate switchgrass , says
Fransen's collaborator, Hal Collins. A self-described "dirt guy" who refers to soil microbes as "my buddies," Collins is a microbiologist and soils specialist with the USDA's
You can't just tell farmers to grow this stuff," he says. "But they will grow it if
they decide they can make money and it will stick around. We're demonstrating in our fields right now that yes, you can grow it, and
here's how you do it."¶ Along with its impressive biomass yield, switchgrass embodies other valuable qualities. It can grow in varied
environments and requires less fertilizer than row crops like corn (and, in some environments, little or no fertilizer at all).
What's more, because it is a densely rooted perennial, it stabilizes the soil against erosion,
preventing runoff into waterways. Best of all, the "cellulosic" ethanol made from switchgrass,
along with many other inedible plant fibers, can do much more to reduce global warming by
displacing fossil fuels than ethanol made from corn--possibly even cutting 80 percent of U.S.
greenhouse-gas emissions from transportation by the year 2050, according to a report by the Natural Resources Defense Council.¶ Corn ethanol is
currently the undisputed U.S. champion of biofuels. But it is cellulosic ethanol that is the great hope of the coming era of
truly green, renewable fuel, because making ethanol from the sugars locked in plant fibers, as opposed to corn kernels, has many advantages. For one,
the raw materials are much cheaper and more abundant. In addition to switchgrass, these fibers include other grasses,
Agricultural Research Service. "
wood from tree plantations, residue from logging operations, and the leftovers after the harvesting of wheat and corn. Another advantage is that unlike corn, which requires
perennial grasses like switchgrass can be harvested for a minimum of
five to ten years without the need to reseed. And the environmental benefits are far
greater.¶ "The sustainable resource transition is one of the big challenges of our age," says Lee
tilling and replanting every year,
Lynd, a Dartmouth College engineering researcher who is helping pioneer new technologies for making cellulosic ethanol. "Historians will look back to see how well we saw the
icebergs ahead of us, and whether we changed course. I think we can navigate successfully, and I strongly believe that cellulosic ethanol made from materials like
switchgrass can help us do it."¶ ¶ Ironically, the corn ethanol industry may be laying the groundwork by helping to establish infrastructure and
expand the number of "flex-fuel" vehicles on the road that can run on a mixture of ethanol and gasoline. And that industry is booming. With a push from the National Energy
Policy Act of 2005, ethanol production soared to 4.86 billion gallons in 2006, a 24 percent increase over 2005. One hundred and fourteen ethanol distilleries were already in
corn ethanol alone can take us only so far . The
increasing diversion of grain to ethanol distilleries is already pushing corn prices higher. Demand
place at the end of the year, with an additional 78 under construction.¶ Still,
from ethanol distilleries has caused the price of corn to soar so high that the cost of tortillas in Mexico has doubled, prompting thousands of poor people to take to the streets in
protest.¶ "Since almost everything we eat can be converted into fuel for automobiles, including wheat, corn, rice, soybeans, and sugarcane, the line between the food and energy
economies is disappearing," writes agricultural economist Lester Brown in a report by the Earth Policy Institute. As that line disappears, corn ethanol's limitations become
clearer. Consider that filling a 25-gallon SUV gas tank with corn ethanol requires enough grain to feed one person for an entire year.¶ In 2006, 20 percent of U.S. corn went to
making ethanol--up from 14 percent the year before. Yet that ethanol displaced just 3.5 percent of U.S. gasoline use. Furthermore, according to recent research described by the
dedicating the entire U.S. corn
crop to ethanol production would meet just 12 percent of gasoline demand.¶ Collins says this raises a
University of Minnesota's Dave Tilman and his colleagues in the Proceedings of the National Academy of Sciences,
moral question: "Should we be growing energy or should we be growing food?"¶ With corn ethanol, there are even doubts about just how much energy we're growing. Corn lives
on solar energy, but fertilizing, harvesting, transporting, and distilling ethanol require lots of fossil energy. Some research suggests that the fossil energy used to produce corn
ethanol actually exceeds the energy it provides. Most research, however, shows a positive, if modest, energy balance--25 percent more energy out than in, according to Tilman's
cellulosic ethanol has a huge advantage: It may yield at least four
times as much energy than is required to produce it.
2006 report in the National Academy of Sciences journal. Here
Warming threatens extinction
Mazo 10 – PhD in Paleoclimatology from UCLA (Jeffrey Mazo, Managing Editor, Survival and
Research Fellow for Environmental Security and Science Policy at the International Institute for Strategic
Studies in London, 3-2010, “Climate Conflict: How global warming threatens security and what to do
about it,” pg. 122)
The best estimates for global warming to the end of the century range from 2.5-4.~C above pre-industrial levels, depending on the scenario. Even in the best-case scenario, the
low end of the likely range is 1.goC, and in the worst 'business as usual' projections, which actual emissions have been matching, the range of likely warming runs from 3.1--7.1°C.
Even keeping emissions at constant 2000 levels (which have already been exceeded), global temperature would still be expected to reach 1.2°C (O'9""1.5°C)above pre-industrial
Without early and severe reductions in emissions, the effects of
climate change in the second half of the twenty-first century are likely to be
catastrophic for the stability and security of countries in the developing world - not to mention the associated human tragedy. Climate change
could even undermine the strength and stability of emerging and advanced economies,
levels by the end of the century."
beyond the knock-on effects on security of widespread state failure and collapse in
developing countries.' And although they have been condemned as melodramatic and alarmist, many informed observers believe that
unmitigated climate change beyond the end of the century could pose an existential threat to
civilisation." What is certain is that there is no precedent in human experience for such rapid
change or such climatic conditions, and even in the best case adaptation to these
extremes would mean profound social, cultural and political changes.
Food price shocks cause global instability
Brown 9 – Founder of Worldwatch and EPI (Lester R, founder of the Worldwatch Institute and the
Earth Policy Institute “Can Food Shortages Bring Down Civilization?” Scientific American, May)
The biggest threat to global stability is the potential for food crises in poor countries to cause
government collapse. Those crises are brought on by ever worsening environmental degradation One of
the toughest things for people to do is to anticipate sudden change. Typically we project the future by extrapolating from trends
in the past. Much of the time this approach works well. But sometimes it fails spectacularly, and people are simply blindsided by
events such as today's economic crisis. For most of us, the idea that civilization itself could disintegrate probably
seems preposterous. Who would not find it hard to think seriously about such a complete departure from what we expect of
ordinary life? What evidence could make us heed a warning so dire--and how would we go about responding to it? We are so
inured to a long list of highly unlikely catastrophes that we are virtually programmed to dismiss them all with a wave of the
hand: Sure, our civilization might devolve into chaos--and Earth might collide with an asteroid, too! For many years I have
studied global agricultural, population, environmental and economic trends and their interactions. The combined effects
of those trends and the political tensions they generate point to the breakdown of governments
and societies . Yet I, too, have resisted the idea that food shortages could bring down not only individual governments but
also our global civilization. I can no longer ignore that risk. Our continuing failure to deal with the environmental
declines that are undermining the world food economy--most important, falling water tables, eroding
soils and rising temperatures--forces me to conclude that such a collapse is possible . The Problem of Failed
States Even a cursory look at the vital signs of our current world order lends unwelcome support to my conclusion. And those of
us in the environmental field are well into our third decade of charting trends of environmental decline without seeing any
significant effort to reverse a single one. In six of the past nine years world grain production has fallen short of consumption,
forcing a steady drawdown in stocks. When the 2008 harvest began, world carryover stocks of grain (the amount in the bin when
the new harvest begins) were at 62 days of consumption, a near record low. In response, world grain prices in the spring and
summer of last year climbed to the highest level ever. As demand for food rises faster than supplies are growing,
the resulting food-price inflation puts severe stress on the governments of countries already teetering
on the edge of chaos. Unable to buy grain or grow their own, hungry people take to the streets. Indeed, even before the
steep climb in grain prices in 2008, the number of failing states was expanding [see sidebar at left]. Many of their problem's
stem from a failure to slow the growth of their populations. But if the food situation continues to deteriorate, entire
nations will break down at an ever increasing rate. We have entered a new era in geopolitics. In the 20th
century the main threat to international security was superpower conflict; today it is failing states. It is
not the concentration of power but its absence that puts us at risk. States fail when national governments can no longer provide
personal security, food security and basic social services such as education and health care. They often lose control of part or all
of their territory. When governments lose their monopoly on power, law and order begin to disintegrate. After a point, countries
can become so dangerous that food relief workers are no longer safe and their programs are halted; in Somalia and Afghanistan,
deteriorating conditions have already put such programs in jeopardy. Failing states are of international concern
because they are a source of terrorists, drugs, weapons and refugees, threatening political stability
everywhere. Somalia, number one on the 2008 list of failing states, has become a base for piracy. Iraq, number five, is a
hotbed for terrorist training. Afghanistan, number seven, is the world's leading supplier of heroin. Following the massive
genocide of 1994 in Rwanda, refugees from that troubled state, thousands of armed soldiers among them, helped to destabilize
neighboring Democratic Republic of the Congo (number six). Our global civilization depends on a functioning
network of politically healthy nation-states to control the spread of infectious disease, to manage the international
monetary system, to control international terrorism and to reach scores of other common goals. If the system for
controlling infectious diseases--such as polio, SARS or avian flu--breaks down, humanity will be in trouble.
Once states fail, no one assumes responsibility for their debt to outside lenders. If enough states disintegrate, their fall
will threaten the stability of global civilization itself.
The plan’s effect on the FSIA would be modeled by other countries,
ensuring global crackdown on sovereign immunity abuse
Riblett, Associate International Arbitration at Freshfields Bruckhaus Deringer US LLP, ‘ 8 (Phillip, Fall,
“A Legal Regime for State-Owned Companied in the Modern Era” Journal of Transnational Law and
Policy, J. of Transnational Law & Policy,
http://www.law.fsu.edu/journals/transnational/vol18_1/riblett.pdf//bueno)
C. Potential Impact of the Proposed Changes on the International Legal Landscape Sovereign immunity is derived from international law. In practice, however,
principles of sovereign immunity are most typically applied in jurisdictions around the world at
the level of national legal systems. The development of the law governing sovereign immunity has thus occurred mostly at the national level.
Rather than being hashed out at an international conference or in international courts, the legal principles applying to sovereign immunity have been developed by individual
jurisdictions. At times, these jurisdictions may be influenced by the development of the law in foreign jurisdictions. As the U.S. Congress considered enactment of the FSIA in
1976, for example, the House Report noted that the FSIA “[was] also designed to bring U.S. practice into conformity with that of most other nations by leaving sovereign
If the United States was following other nations in 1976, it
now has an opportunity to modernize the FSIA in a way that can serve as a
model for other nations. The proposed changes are intuitive in the current climate,
and they will not go unnoticed abroad. While development of the principles of sovereign
immunity at the international level has not been completely absent, it has not gone very far. On December 2, 2004, the
immunity decisions exclusively to the courts.”227
United Nations General Assembly adopted the United Nations Convention on Jurisdictional Immunities of States and Their Property (the “UN Convention”). 228 The UN
Convention would enter into force only once thirty states had deposited original instruments of ratification, acceptance, approval or accession.229 While the UN Convention was
open for signature from January 17, 2005 until January 17, 2007, only twenty-eight states signed the Convention during that period.230 As of January 2009, only six states had
deposited instruments of ratification.231 The United States has not signed the UN Convention.232 With respect to the Convention’s rationale, the Preamble provides that the
Convention “would enhance the rule of law and legal certainty, particularly in dealings of States with natural or juridical persons, and would contribute to the codification and
development of international law and the harmonization of practice in this area.”233 The UN Convention offers the following definition of the term “State”: (i) the State and its
various organs of government; (ii) constituent units of a federal State or political subdivisions of the State, which are entitled to perform acts in the exercise of sovereign
authority, and are acting in that capacity; (iii) agencies or instrumentalities of the State or other entities, to the extent that they are entitled to perform and are actually
performing acts in the exercise of sovereign authority of the State; (iv) representatives of the State acting in that capacity.234 The vagueness of subsection (iii) of the proposed
definition of “State” is problematic. It is unclear when an entity is “performing acts in the exercise of sovereign authority of the State.” Moreover, it appears that no particular
connection to the State is necessary for the entity, other than its qualifying as an agency or instrumentality— terms left undefined—and being “entitled to perform” such acts.
Regardless of the failure of the UN Convention to address the concerns at the heart of this Article, an insufficient number of states has signed or ratified the Convention.
Efforts at the international level to develop the legal principles governing sovereign
immunity have been unsuccessful, so these principles will continue to be developed
mainly at the domestic level. As recently noted by Professor Catherine Powell of Fordham Law School in the human rights context: Because
international law is “incomplete,” it is interpretatively open and invites domestic actors to be involved
in the process of its creation. In the U.S. context, this means that norms
developed democratically at the domestic level play a gap-filling function
and have the potential to inform international law (and vice versa) through a continually
iterative process.235 Similarly, norms developed at the domestic level can also inform
international legal principles—such as those governing sovereign
immunity—embedded in other domestic legal systems. Thus, modernization of
the FSIA by the United States could potentially have an impact on the
modernization of sovereign immunity globally .
Broad sovereign immunities clause encourages global genocide
Kelly ’11 (Michael, Professor of Law, Associate Dean for Faculty Research & International Programs,
Creighton University School of Law. B.A., J.D. Indiana University; LL.M. Georgetown University.
Professor Kelly is President of the U.S. National Chapter of L'Association Internationale de Droit Penal.
This is a case study drawn from a larger paper presented at the fourth Biennial Four Societies Conference
(2010) in Japan, “Ending Corporate Impunity for Genocide: The Case Against China's State-Owned
Petroleum Company in Sudan,” Oregon Law Review, 2011, Lexis)//ER
Companies take advantage of favorable business climates all the time. That's the nature of business. But when
a company helps engineer genocide in order to create that favorable business climate, it
should be called to account. This is precisely what the Chinese National Petroleum
Corporation (CNPC) has done in the Darfur region of Sudan. This Article calls them to account. No company
should be able to get away with assisting in the commission of genocide by hiding behind the legal construct that it is
not a natural person. Genocide is the crime of crimes. n2 The Holocaust is the historical benchmark. It is, quite simply, the eradication of a people. The horror of the Holocaust
moved the world to outlaw genocide in 1948. n3 People have been convicted by a variety of tribunals for committing genocide and for complicity in genocide for many years. One
of the bedrock principles to emerge from the Nuremberg and Tokyo trials after World War II was that individuals could be prosecuted for violations of international law. And,
although that principle was made clear with respect to natural persons like Nazi leaders and Japanese generals, the principle was less clear with respect to legal persons like
corporations. n4 The treaty criminalizing genocide holds "persons" accountable for committing genocide--it does not distinguish between natural or legal persons. n5 Indeed,
impunity is what companies
have historically enjoyed with respect to criminal wrongdoing--especially in the area of
international law. n6 While rights tend to clarify themselves quickly, it [*415] often takes decades for unambiguous
obligations to similarly emerge from international law's murky depths. n7 That is not to say that corporations cannot
be held civilly liable for wrongdoing. n8 Companies have already been sued, albeit unsuccessfully, for doing
business in Sudan where human rights abuses are implicated. n9 In the United States, this involves litigation under
the Alien Tort Statute, which has recently been interpreted rather restrictively. n10 But criminal sanctions have not been
forthcoming. This is true no matter whether the company is involved in war crimes, crimes against humanity, or genocide. To the extent corporations are involved
nothing in the travaux preparatoires to the Genocide Convention accords corporations impunity in this regard. But
in any of these "big three" types of prohibited jus cogens conduct, their involvement in the first two are typically more direct. n11 And it would be safe to assume that most
to the extent a company [*416] finds
itself involved in genocide, that involvement will usually be passive , n12 typically
discovered after the fact, and quietly allowed to continue if the investment already made
is large enough to induce continued support. n13 As international trade expanded during
the Cold War and beyond, the extensive rights accorded multinational corporations
were not checked with coextensive obligations. n14 And even though international
criminal law began to develop and congeal around individual and state responsibility,
the idea of corporate responsibility slipped through the net. n15 Throughout the past half century, states
and international organizations have continued to expand the codification of
international human rights law protecting the rights of individuals against
governmental violations. Parallel with increasing attention to the development of international criminal law as a response to war crimes, genocide, and
other crimes against humanity, attention to individual responsibility for grave human rights abuses has
grown. "The creators of this ever-larger web of human rights obligations, however, failed
to pay sufficient attention to some of the most powerful nonstate actors in the world,
that is, transnational corporations and other business enterprises." n16 This state of affairs suits companies'
interests. n17 But corporate entities increasingly find themselves enmeshed in atrocities that
demand judicial redress and greater public scrutiny. And no crime justifies more
scrutiny than genocide.
corporations would be loath to actively commit genocide because of the stigma associated with that crime. So,
Salvaging Firms Advantage
Advantage 2 – Salvaging
US salvaging industry is declining in the squo – current investment
insufficient
Tsavliris 12 – President of the International Salvage Union (Andreas, “THE CHALLENGES FACING
THE SALVAGE INDUSTRY,” International Salvage Union, 2012, http://www.marinesalvage.com/media-information/conference-papers/the-challenges-facing-the-salvage-industry/)//JGold
The salvage industry faces challenging times. Commercial pressures, the unpredictable
nature of the business and a decline in the number of salvage cases make investment in
equipment and vessels difficult. Shore-based authorities’ requirements and direction of salvage
operations can mean longer and more complex jobs with the background threat of being
criminalised for good intentions. Protecting the environment has been, rightly, an increasingly key
priority and yet the salvor – often the only agency with the equipment and skill to make
a difference to the outcome – does not always get a fair reward for their efforts. The role of Lloyd’s Open Form
and the administration of the contract has been though recent change but its principles have stood the test of time, what does it offer shipping industry? There are
also concerns about the practicalities of salving the new generation of massive container
ships and cruise liners with thousands of passengers aboard. But the industry is vigorous, salvors are problem solvers and stand ready to continue to serve
the marine community with innovation and dedication.
That’s a direct result of the Odyssey ruling – reversing the ruling allows
commercial salvaging which revives the industry
Song, Senior Staff Member American University Law Review, ’13 (Zhen, August, “Going For Gold: The
Meaning of "Commercial Activity" in the Foreign Sovereign Immunities Act in the Race for Buried
Treasure in Sunken Shipwreck” American University Law Review, 62 Am. U.L. Rev. 1771, lexis//bueno)
The Eleventh Circuit's decision in Odyssey has potentially significant
consequences for the futures of the commercial activity analysis and the
salvage of historic shipwrecks. As Odyssey Marine demonstrated, shipwreck salvage efforts can be
both time-consuming and costly. n218 This is especially true for historic shipwrecks because of the uncertainty over the precise location of the
Conclusion
wreck, and a greater likelihood that the vessel and artifacts are scattered over the ocean floor. n219 Because the passage of time does not affect a State's [*1804] property
interest in its sunken military vessels like the Mercedes, any money and time spent on salvaging these shipwrecks will likely go uncompensated. n220 Therefore,
allowing foreign states to claim sovereign immunity for any ship that may be
characterized as a state-owned or military vessel without regard to the nature of its use
prior to sinking will disincentivize future salvage of sunken state-owned
vessels or vessels whose ownership are in dispute or unknown. n221 A potential compromise for preserving
sovereign immunity for sunken state-owned vessels without deterring private salvage companies like Odyssey Marine from continuing their work would be to offer a reward or
compensation for salvage efforts. n222
Terrorist attacks on US ports are inevitable – an effective salvaging sector is
key to rapid response which mitigates the economic impact of these attacks
TRB 4 – Transportation Research Board, sector of the National Academy of Sciences, “a private,
nonprofit, self-perpetuating society of distinguished scholars engaged in scientific and engineering
research, dedicated to the furtherance of science and technology and to their use for the general welfare.
The Academy has a mandate that requires it to advise the federal government on scientific and technical
matters,” (“Marine Salvage Capabilities Responding to Terrorist Attacks in U.S. Ports—Actions to
Improve Readiness,” The National Academies,
http://onlinepubs.trb.org/onlinepubs/conf/reports/cp_30.pdf)//JGold
Federal officials and industry leaders have recently focused national attention on the
security of U.S. seaports and posed serious questions about how best to prevent future
terrorist incidents in and around these facilities. Equally important, however, are questions
about U.S. capabilities to respond adequately to a terrorist incident should one occur.
Ports and waterways are vital to the nation’s economic well-being, and the
closure of major harbors would have an enormous impact on both commercial and
military operations. The response to such incidents would involve many government agencies and organizations at the federal, state, and local levels. With
this in mind, the U.S. Navy Office of the Supervisor of Salvage and Diving (SupSalv) asked the National Academies’ Marine Board within the Transportation Research Board to
convene a workshop of marine transportation and salvage professionals as well as organizational stakeholders in government and industry. The workshop was designed to
explore and evaluate current capabilities to respond to terrorist incidents in major U.S. seaports and to report on the current readiness posture and strategies to improve
Given the current elevated threat level, the restructuring of parts of the federal government with the establishment of the
it is timely to consider whether
U.S. marine salvage capabilities are adequate for responding to terrorist-related
incidents. It is critical that ports and waterways be kept open to provide services with
minimal interruption. If a terrorist-related or other incident results in the blockage of a
harbor or waterway, clearance of the channel, waterway, or harbor, or all three, will be a
major focus of the response efforts. In addition, many other issues, such as organizational and interagency coordination, must be addressed,
deficiencies.
Department of Homeland Security (DHS), and variations in response missions of different federal agencies,
especially if there are human casualties and public health impacts. The principal goals of the workshop were to share information among participants concerning current marine
salvage response capabilities and to determine if there are major gaps or concerns regarding the current capabilities and agency roles. Since September 11, 2001, the U.S. Coast
Guard (USCG) has given increased emphasis to maritime homeland security to reflect its leadership role in that mission area while continuing to have responsibility for
maritime safety, protection of natural resources, maritime mobility, and national defense (e.g., ports and waterways security). Thus, for maritime incidents such as collisions,
groundings, and shipboard fires, USCG usually takes the federal lead responsibility for response. If salvage response is needed, USCG typically relies on the responsible party to
provide commercial salvage capability. In the absence of adequate action by the responsible party, as well as in any case requiring salvage expertise, USCG calls upon the Navy
the Navy has been the federal agency that maintains the ability to
respond to maritime accidents requiring professional marine salvage services. SupSalv
was established to meet military needs for maritime salvage and underwater search
operations, and that remains its primary mission. To meet its responsibilities, SupSalv augments the Navy’s
internal resources through competitive long-term contracts with commercial salvors to
provide additional assets, personnel, and cutting-edge technology as needed. Because of its unique
for salvage assistance. Traditionally,
capabilities and recognized expertise in the field, SupSalv also has the discretionary authority, under the Salvage Facilities Act (P.L. 80-513, 10 U.S.C. Sections 7361-–7367), to
The Navy’s ability to
exercise that authority with respect to the private sector has been, and continues to be,
constrained by budgetary considerations and shrinking internal salvage resources. In 1982, the
provide and promote domestic marine salvage facilities and capabilities for private-sector as well as public-sector vessels.
Marine Board conducted a comprehensive study of U.S. salvage needs and capabilities and published Marine Salvage in the United States. This report was followed by a 1994
Marine Board report, A Reassessment of the Marine Salvage Posture of the United States, which describes the Navy’s salvage resources and its contribution to the nation’s
there has been a continuing
decline in the number of vessels and other resources. In addition, the 1994 report found that there is not
enough marine salvage business to support a commercial salvage industry solely
dedicated to traditional salvage work, and that reality continues today. Since the 1994 study,
substantial changes have occurred in public and private salvage capabilities as well as in
public expectations for the nation’s ability to respond to major incidents at sea. The major U.S.
salvage capabilities. The overall organization of the Navy’s salvage mission has remained much the same since 1994, but
salvage companies recently formed the American Salvage Association (ASA) with the intent of agreeing to and defining joint interests of salvors for representation before federal
there has been no significant increase in the number of domestic
salvage vessels or their capabilities in recent years. Although marine casualties in U.S. waters are at a historically low rate,
recent events— notably the terrorist attacks on the World Trade Center and the Pentagon
in the United States and the attack on the USS Cole in the Port of Yemen—suggest that
issues relating to national salvage capability have importance not only in terms of
transportation, economic, and environmental concerns but also for homeland security.
agencies and the general public. In summary,
Port shutdown from terrorist attack would devastate the economy unless
the salvaging sector is improved
Hooper 7 - Captain, U.S. Navy; currently serving as the Navy’s Supervisor of Salvage & Diving; B.S.,
Loyola College (Baltimore); MSME, Naval Postgraduate School; extensive experience in program
management, including major command and prior tours in maritime salvage, (Richard, “THE NEED FOR
A NEW NATIONAL MARITIME SALVAGE POLICY IN VIEW OF THE TERRORIST THREAT &
HURRICANE LESSONS LEARNED,” Transportation Research Board, Spring 2007,
http://onlinepubs.trb.org/onlinepubs/archive/MarineBoard/Spring07/Salvage.pdf)//JGold
More than 90 percent (by weight) of our import/export
trade, and almost 70 percent by value, moves by vessel through U.S. maritime ports.
With this dependency on maritime traffic, the continued growth and stability of our
national economy and “way of life” are acutely vulnerable to maritime terrorist attack .
Events since 2000 have demonstrated three inescapable facts. First, the October 2000 attack on the USS Cole highlighted
the vulnerability of not only U.S. Navy warships, but of all U.S. maritime assets to the threat of
enemies willing to perpetuate suicide attacks. Second, the attacks of September 11, 2001 demonstrated the enemy’s
willingness, financial capacity and embedded human resources to bring the assault
directly to the U.S. homeland. Third, the terrorist attack on M/V Limburg in October 2002
demonstrated the enemy’s recognition of the economic impact of striking maritime
targets, including: the loss of the vessel/cargo, the added economic burden of increased maritime security, the added burden of increased insurance premiums45 for the
The United States has the largest economy of any nation on the planet.
shipping industry, and the added economic burden of environmental remediation after a successful very large crude carrier (VLCC) attack. The Target While the attacks of
September 11, 2001 were spectacularly effective in striking at two of the most prominent symbols of the United States, those attacks could have had
far more long lasting economic effects if they targeted our maritime lifelines. In particular, the
United States and its economy are extraordinarily dependent on the nation’s ports and
waterways. The danger to the nation is that some of our largest and most strategically important (militarily and economically) seaports could be
effectively shutdown for extended periods with coordinated (even if relatively
unsophisticated) terrorist attacks. Indeed, a recent and prescient report by the Marine Board of the Transportation Research Board (TRB) – a
Division of the National Research Council of the National Academies – underscored the possibility and likelihood of such strikes against U.S. waterways or ports.6 The
potential economic consequences of such maritime terrorist strikes can hardly be
overstated,7,8 and are illustrated when even a comparatively small maritime accident9 occurs at an inopportune location on a U.S. maritime lifeline. The difficulty of
preventing well-resourced suicide attacks on the maritime stage is an entirely new challenge for the nation. In order to effectively counter suicidal maritime threats, an
unprecedented level of advanced intelligence10,11 and unparalleled, aggressive rules of engagement will be required. It remains to be seen whether either the required high level
of intelligence can be attained or whether sufficiently aggressive rules of engagement can be established that will be politically acceptable at home or in the international
the nation must be
prepared for the high probability of successful attacks 2 Rev 5 on U.S. maritime
interests, including our ports and strategic waterways. Since the risk of an incident can not effectively or affordably be
brought to zero, the nation needs a robust marine salvage capability to mitigate the effects of an
attack on our ports or marine waterway lifelines. National Salvage Capacity The TRB/Marine Board
has long identified the lack of adequate domestic salvage capability as a
national issue. The inadequacy of U.S. salvage capability has been widely recognized
– but largely ignored – for decades. A comprehensive study of salvage needs and
capabilities, conducted in 1982 by the Marine Board, found that the traditional marine salvage company,
with dedicated vessels and personnel, was fast disappearing from the domestic
commercial salvage market due to high maintenance costs as well as fewer maritime
accidents.12 In 1994, the Marine Board followed up with yet another impressive study that once again concluded, among other things, that: - With marine
casualties in U.S. waters at a historically low rate, there was not enough traditional
community. Given the impediments (including associated costs) to both of these difficult preventative measures being totally effective,
salvage work available to make it a paying proposition for companies dedicated solely
to salvage. As a result, salvage had become a secondary business for salvors and other marine
contractors. - There was not enough financial incentive for companies to maintain
dedicated salvage vessels with fully trained salvage crews standing by for potential
offshore casualties. - The level of salvage activity in the U.S. was insufficient to attract
and train future generations of salvors.
That collapses trade and the global economy
Marshall, ’10 (Andrew, “Maritime Terrorism Could Have Global Economic Impact” Insurance
Journal, http://www.insurancejournal.com/news/international/2010/03/05/107926.htm//bueno)
specialization in global supply chains has brought significant efficiency gains, it has also brought
vulnerability. Disruption to a key node in the supply chain can cause dramatic and
unpredictable turbulence in the whole system. That was why global semiconductor prices nearly doubled following
an earthquake that hit Taiwan in 1999, and why Hurricane Katrina spread turbulence throughout world markets. “A major terrorist attack that
closed a port … for weeks would have severe economic consequences on
world trade because it would inflict major disruptions in complex just-in-time supply
chains that comprise the global economy,” the World Economic Forum said in its Global Risks 2010
report, released in January. In a research paper for RAND, terrorism risk analyst Peter Chalk said: “Maritime attacks offer
terrorists an alternate means of causing mass economic destabilization.”
Disrupting the mechanics of the global ‘just enough, just in time’ cargo freight
trading system could potentially trigger vast and cascading fiscal effects, especially
if the operations of a major commercial port were curtailed,” he added.
This is because while
Effective trade creates a structural disincentive for conflict
Griswold, Director Center for Trade Policy Studies at Cato, ’11 (Daniel, “Free Trade and the Global
Middle Class” Hayek Society Journal, Vol 9, http://www.cato.org/pubs/articles/Hayek-Society-JournalGriswold.pdf)
Our more globalized world has also yielded a “peace dividend.” It may not be obvious when our daily news cycles are
dominated by horrific images from the Gaza Strip, Afghanistan and Libya, but our more globalized world has somehow become a more peaceful world. The number
of civil and international wars has dropped sharply in the past 15 years, along with battle
deaths. The reasons behind the retreat of war are complex, but again the spread of trade and globalization have played
a key role. Trade has been seen as a friend of peace for centuries. In the 19th century, British statesman Richard Cobden pursued free trade as a way not only to bring
more affordable bread to English workers but also to promote peace with Britain’s neighbors. He negotiated the Cobden-Chevalier free trade agreement with France in 1860 that
helped to cement an enduring alliance between two countries that had been bitter enemies for centuries. In the 20th century, President Franklin Roosevelt’s secretary of state,
Cordell Hull, championed lower trade barriers as a way to promote peaceful commerce and reduce international tensions. Hull had witnessed first-hand the economic
unhampered trade dovetail[s] with peace; high tariffs,
trade barriers and unfair economic competition, with war.” Hull was awarded the 1945 Nobel Prize for Peace, in part
because of his work to promote global trade. Free trade and globalization have promoted peace in three main ways. First, trade and globalization
have reinforced the trend towards democracy, and democracies tend not to pick fights
with each other. A second and even more potent way that trade has promoted peace is by raising the
cost of war. As national economies become more intertwined, those nations have more
to lose should war break out. War in a globalized world not only means the loss of human lives and tax dollars, but
also ruptured trade and investment ties that impose lasting damage on the economy . Trade and
economic integration has helped to keep the peace in Europe for more than 60 years. More recently, deepening economic ties between
Mainland China and Taiwan are drawing those two governments closer together and
nationalism and retribution after World War I. Hull believed that “
helping to keep the peace. Leaders on both sides of the Taiwan Straight seem to understand that reckless nationalism would
jeopardize the dramatic economic progress that region has enjoyed. A third reason why free trade
promotes peace is because it has reduced the spoils of war. Trade allows nations to acquire wealth
through production and exchange rather than conquest of territory and resources. As
economies develop, wealth is increasingly measured in terms of intellectual property, financial assets, and human capital. Such assets cannot be easily
seized by armies. In contrast, hard assets such as minerals and farmland are becoming
relatively less important in high-tech, service economies. If people need resources outside their national
borders, say oil or timber or farm products, they can acquire them peacefully by freely trading what they
can produce best at home. The world today is harvesting the peaceful fruit of expanding trade. The first half of the 20th century was marred by two
devastating wars among the great powers of Europe. In the ashes of World War II, the United States helped found the General Agreement on Tariffs and Trade in 1947, the
precursor to the WTO that helped to spur trade between the United States and its major trading partners. As a condition to Marshall Plan aid, the U.S. government also insisted
that the continental European powers, France, Germany, and Italy, eliminate trade barriers between themselves in what was to become the European Common Market. One
purpose of the common market was to spur economic development, of course, but just as importantly, it was meant to tie the Europeans together economically. With six decades
The notion of another major war between France,
Germany and another Western European powers is unimaginable. Compared to past eras, our time
is one of relative world peace. According to the Stockholm International Peace Research Institute, the number of armed
conflicts around the world has dropped sharply in the past two decades. Virtually all the conflicts today are civil and guerilla
wars. The spectacle of two governments sending armies off to fight in the battlefield has become rare. In the decade from 1998 through
2007, only three actual wars were fought between states: Eritrea-Ethopia in 1998-2000, India-Pakistan in 1998-2003,
and the United States-Iraq in 2003. From 2004 through 2007, no two nations were at war with one another. Civil wars have ended or at least
ebbed in Aceh (in Indonesia), Angola, Burundi, Congo, Liberia, Nepal, Timor-Leste and Sierra Leone. Coming to the same conclusion is the Human
Security Centre at the University of British Colombia in Canada. In a 2005 report, it documented a sharp decline in the
number of armed conflicts, genocides and refugee numbers in the past 20 years. The
average number of deaths per conflict has fallen from 38,000 in 1950 to 600 in 2002.
Most armed conflicts in the world now take place in Sub-Saharan Africa, and the only
form of political violence that has worsened in recent years is international terrorism. Many
causes lie behind the good news – the end of the Cold War, the spread of democracy, and peacekeeping efforts by major powers among them – but expanding
trade and globalization appear to be playing a major role in promoting world peace. In a
chapter from the 2005 Economic Freedom of the World Report, Dr. Erik Gartzke of Columbia University compared the propensity of
countries to engage in wars to their level of economic freedom. He came to the conclusion that economic
freedom, including the freedom to trade, significantly decreases the probability that a country will
experience a military dispute with another country. Through econometric analysis, he
found that, “Making economies freer translates into making countries more peaceful. At the
extremes, the least free states are about 14 times as conflict prone as the most free. A 2006
study for the institute for the Study of Labor in Bonn, Germany, found the same pacific effect of
trade and globalization. Authors Solomon Polachek and Carlos Seiglie found that “trading nations cooperate more and
fight less.” In fact, a doubling of trade reduces the probability that a country will be involved
in a conflict by 20 percent. Trade was the most important channel for peace, they found, but investment flows also had a positive effect. A
democratic form of government also proved to be a force for peace, but primarily
because democracies trade more. All this helps explain why the world’s two most conflictprone regions – the Arab Middle East and Sub-Saharan Africa – are also the world’s two least globally and
economically integrated regions. Terrorism does not spring from poverty, but from
ideological fervor and political and economic frustration. If we want to blunt the appeal
of radical ideology to the next generation of Muslim children coming of age, we can help create more economic
opportunity in those societies by encouraging more trade and investment ties with the
West. The U.S. initiative to enact free trade agreements with certain Muslim countries, such as Morocco, Jordan, Bahrain and Oman, represent small steps in the right
of hindsight, the plan must be considered a spectacular success.
An even more effective policy would be to unilaterally open Western markets to products
made and grown in Muslim countries. A young man or woman with a real job at an exportoriented factory making overcoats in Jordan or shorts in Egypt is less vulnerable to the appeal of an Al-Qaida
recruiter. Of course, free trade and globalization do not guarantee peace or inoculation against terrorism, anymore than they guarantee democracy and civil liberty. Hotdirection.
blooded nationalism and ideological fervor can overwhelm cold economic calculations. Any relationship involving human beings will be messy and non-linear. There will always
deeper trade and investment ties
among nations have made it more likely that democracy and civil liberties will take root,
and less likely those gains will be destroyed by civil conflict and war.
be exceptions and outliers in such complex relationships involving economies and governments. But
Economic decline increases the change of interstate wars
Royal, Director Cooperative Threat Reduction at DOD, ’10 (Jedidiah, “Economic Integration,
Economic Signaling, and the Problem of Economic Crisis” pub in ‘Economics of War and Peace:
Economic, Legal, and Political Perspectives’ pub by Goldsmith and Brauer, p 213-215)
Less intuitive is how
periods of economic decline may increase the likelihood of external
conflict. Political science literature has contributed a moderate degree of attention to the impact of economic decline and the security and
defence behaviour of interdependent states. Research in this vein has been considered at systemic, dyadic and national levels. Several notable
contributions follow. First, on the systemic level, Pollins (2008) advances Modclski and Thompson's (1996) work on leadership cycle theory, finding
rhythms in the global economy are associated with the rise and fall of a pre-eminent
power and the often bloody transition from one pre-eminent leader to the next. As such,
exogenous shocks such as economic crises could usher in a redistribution of relative
power (see also Gilpin, 1981) that leads to uncertainty about power balances, increasing the
risk of miscalculation (Fearon. 1995). Alternatively, even a relatively certain redistribution of power could lead to a permissive
that
environment for conflict as a rising power may seek to challenge a declining power (Werner, 1999). Separately, Pollins (1996) also shows that global
economic cycles combined with parallel leadership cycles impact the likelihood of conflict among major, medium and small powers, although he
suggests that the causes and connections between global economic conditions and security conditions remain unknown. Second, on a dyadic level,
'future expectation of trade' is a significant
variable in understanding economic conditions and security behaviour of states. He argues
that interdependent states are likely to gain pacific benefits from trade so long as they
have an optimistic view of future trade relations. However, if the expectations of future
trade decline, particularly for difficult to replace items such as energy resources, the
likelihood for conflict increases, as states will be inclined to use force to gain access to those resources. Crises could potentially
Copeland's (1996. 2000) theory of trade expectations suggests that
be the trigger for decreased trade expectations either on its own or because it triggers protectionist moves by interdependent states.4 Third, others have
considered the link between economic decline and external armed conflict at a national level. Blomberg and Hess (2002) find a strong correlation
between internal conflict and external conflict, particularly during periods of economic downturn. They write: The linkages between internal and
external conflict and prosperity are strong and mutually reinforcing. Economic conflict tends to spawn internal conflict, which in turn returns the
the presence of a recession tends to amplify the extent to which international
and external conflicts self-reinforce each other. (Blomberg & Hess, 2002. p. 89) Economic decline has also been
favour. Moreover,
linked with an increase in the likelihood of terrorism (Blomberg. Hess. & Weerapana. 2004). which has the capacity to spill across borders and lead to
'Diversionary theory' suggests
that, when facing unpopularity arising from economic decline, sitting governments have
increased incentives to fabricate external military conflicts to create a 'rally around the
flag' effect. Wang (1990, DeRouen (1995). and Blomberg, Hess, and Thacker (2006) find supporting evidence showing that economic decline
external tensions. Furthermore, crises generally reduce the popularity of a sitting government.
and use of force are at least indirectly correlated. Gelpi (1997), Miller (1999), and Kisangani and Pickering (2009) suggest that the tendency towards
diversionary tactics are greater for democratic states than autocratic states, due to the fact that democratic leaders are generally more susceptible to
DeRouen (2000) has provided evidence showing that
periods of weak economic performance in the U nited S tates, and thus weak Presidential popularity, are
statistically linked to an increase in the use of force. In summary, recent economic
scholarship positively correlates economic integration with an increase in the frequency of economic crises, whereas political science
being removed from office due to lack of domestic support.
scholarship links economic decline with external conflict at systemic, dyadic and
national levels.' This implied connection between integration, crises and armed conflict has not featured prominently in the economicsecurity debate and deserves more attention. This observation is not contradictory to other perspectives that link economic interdependence with a
decrease in the likelihood of external conflict, such as those mentioned in the first paragraph of this chapter. Those studies tend to focus on dyadic
interdependence instead of global interdependence and do not specifically consider the occurrence of and conditions created by economic crises. As
such, the view presented here should be considered ancillary to those views.
An effective attack on ports would also decimate US spare oil capacity
McCaul, Chairperson Subcommittee on Oversight, Investigations, and Management, ’11 (Michael,
August 24, “Preventing an Economic Shock Wave: Securing the Port of Houston from a Terrorist Attack”
Field Hearing Before The Subcommittee On Oversight, Investigations, And Management Of The
Committee On Homeland Security House Of Representatives, http://www.gpo.gov/fdsys/pkg/CHRG112hhrg72928/pdf/CHRG-112hhrg72928.pdf//bueno)
The Port of Houston is the energy capitol of the United States, and a target-rich
environment. The port stretches from Galveston Bay, past Texas City, across the Gulf Intercoastal Waterway, past Bayport and the San Jacinto Monument, and
deep into the City of Houston. The port includes the Houston Ship Channel; a 52-mile highway for shipping. It has a wide range of businesses
and is not just one of the physically largest ports in America, but also a leader in the
movement of cargo. • Houston brings in more imports than any other U.S. harbor (88.2 million
tons valued at $60.1 billion in 2010). • Houston has the second-highest level of exports (73.2 million tons valued at $70.8 billion in 2010), and the second-highest level of total
maritime tonnage (220 million tons in 2010) in the United States. • More than 7,800 vessels arrive and 150,000 barge movements are registered annually. • Most importantly
25% of the oil imports for America flow through the Port of Houston. Each day 25–
30 oil and chemical tankers move along the Houston ship channel. And 31% of America’s crude oil refining
capacity is in this harbor. If catastrophe struck the port, there is little spare capacity to
import and refine crude oil elsewhere in the country. A 2007 study by the Houston Port Authority
roughly
estimated that the port directly leads to $285 billion in National economic activity, 1.5 million jobs and $16.2 million in Nation-wide tax revenues. The U.S. Coast Guard
if the Houston Ship Channel was closed, it would have a direct negative impact
on the economy of approximately $406 million per day. Americans are now paying
nearly $4.00 for a gallon of gas. Even an attack causing little damage could raise
prices at the pump by a dollar or more. The Port of Houston is integral to
America’s economy . We must ensure there are no gaps in our security at this port,
and ensure that terrorists do not wound our economy or harm our citizens by
successfully carrying out an attack in Houston. The U.S. Coast Guard, Texas State and County officials, and industry stakeholders
estimates that
associated with the Port of Houston have done a great deal to protect the port and its shipping from a terrorist attack. The U.S. Coast Guard and local police have access to a realtime satellite tracking system that pinpoints the exact size and location of every ship in and around Houston. The Coast Guard has heavily armed vessels patrolling the channel,
and along with Harris County Sheriff boats, stand ready to respond. Equally important, Texas established the Houston Ship Channel Security District, a unique industry-
The GAO has made several recommendations to mitigate terrorist attacks at
recommends: • All participants should plan for meeting the growing security workload as liquefied natural gas shipments increase; • Ports should
plan for dealing with the economic consequences of an attack; • Terrorism and oil spill response plans at the
National and local level should be integrated; and • Performance metrics should be developed for an emergency response. All agencies generally
agreed with the GAO recommendations.
government partnership to assist protecting the facilities surrounding the ship channel.
ports. It
US lash out from oil price spikes causes global conflict
Qasem, PhD Candidate Pompeu University, ‘7 (Yasin, July 9, “The Coming Warfare of Oil Shortage”
http://www.opednews.com/articles/opedne_islam_ya_070709_the_coming_warfare_o.htm)
Recognizing the strategic value of oil for their national interests, superpowers will not
hesitate to unleash their economic and military power to ensure secure access to oil resources,
triggering worldwide tension, if not armed conflict. And while superpowers like the United
States maintain superior conventional military power, in addition to their nuclear power, some weaker states are
already nuclearly armed, others are seeking nuclear weapons. In an anarchic world with
many nuclear-weapon states feeling insecure, and a global economy in downward spiral, the chances of using
nuclear weapons in pursues of national interests are high. What all of this means is that when reserves are exhausted
oil will turn from a blessing to curse. When the curse strikes a new world order will emerge, in which today’s ways of life, politics, and conflicts will be not the same. The
rising oil prices and current international tension over nuclear capabilities are telling
signs about the kind of future awaiting humanity ahead of the road. Alas, we are all waiting for the final drop
of oil to trickle before reaching the zenith of a disaster which is already in the making.
Solvency
The Odyssey ruling prohibited the exploration of shipwrecks – broadening
the commercial exception clause sets an effective precedent and allows the
salvage of sunken vessels
Werner, JD Candidate University of Miami Law, ’13 (Dave, Summer, “Piracy in the Courtroom: How
to Salvage $ 500 Million in Sunken Treasure Without Making a Cent” University of Miami Law Review, 67
U. Miami L. Rev. 1005, lexis//bueno)
Application of the
commercial exceptions to the FSIA requires determining whether shipwrecks are vessels
serving either a commercial or governmental purpose. Courts create incentives or
disincentives that encourage and discourage the salvage of sunken vessels
by broadening or narrowing the commercial exceptions. When the Eleventh
Circuit concluded that the Mercedes operated as a military vessel when it sank during the Battle of Saint
Vincent Bay, it held that customs contemporary to the lifetime of vessels determine whether
the commercial exception to the FSIA applies to the vessel. n164 Although the Eleventh Circuit's holding was
ultimately too late to shield the Mercedes from Odyssey Marine's Amsterdam Project, the holding paternalistically applies
sovereign immunity to protect shipwrecks. In lieu of encouraging the exploration and
discovery of shipwrecks, the Eleventh Circuit's holding uses sovereign immunity to
cordon off these shipwrecks from disturbance where they will remain cloaked under the
depths of the sea. 1. Rejecting Modern Legal Doctrine in Favor of the Past, and Vice-Versa Admiralty law prides itself on its ancient pedigree. n165 The
Eleventh Circuit applied a modern statute - the FSIA - to the salvage of a two-hundredyear-old shipwreck using reasoning predicated on customs dating back two hundred years. n166 Invoking the custom of the early 1800s [*1033] to determine
C. The Crossroads: Can Governments Promote Deep-Sea Salvage While Also Encouraging the Preservation of Deep-Sea Wrecks?
that the Mercedes acted in the capacity of a sovereign at the time of its demise allowed the Eleventh Circuit, as a court sitting in admiralty, to implement the ancient "laws of the
For Odyssey Marine, however, this was not an idiosyncrasy of courts sitting in admiralty; it was a restraint on the
application of the FSIA's commercial exception. Odyssey Marine also cited evidence dating to the Mercedes' sea-faring existence
to persuade the court to find that the Mercedes was not acting in the capacity of a sovereign. Even though the ship's manifest
demonstrated that the vessel served as a commercial vessel transporting people and
goods for a price, this tactic did not persuade the court. n168 For Odyssey Marine, this
holding sits in direct contrast to the holding adopted by the U.S. Supreme Court in
Republic of Argentina v. Weltover, Inc., which denies sovereign immunity to
government actors behaving in the capacity of a "private player," not a government regulator. n169 Rather
than rely upon modern jurisprudence, the Eleventh Circuit deferred to the findings of
historians in its application of the FSIA. Unlike the historically inclined method the court used to apply sovereign immunity, the Eleventh
sea." n167
Circuit decided the severability of the Mercedes from its cargo based on modern, domestic laws rather than the custom of Spain or the United States at the time the ship sank.
The Eleventh Circuit held that the legislative intent of modern laws such as the ASA and
the SMCA dictated that a vessel and its cargo are not severable. n170 But the Eleventh Circuit neglected to
acknowledge alternative modern judicial influences on the issue of severability by failing to address the Congress Amicus. This amicus brief explicitly detailed how the SMCA
was inapplicable to military ships used in the same manner as the Mercedes because "carrying private passengers and commercial [*1034] cargo for freight, payable to the
Had the court
reviewed case law contemporaneous with the demise of the Mercedes, the court would
have found case law elucidating the Supreme Court's intent to sever the sovereign
immunity of a vessel from its cargo. In 1822, the Supreme Court held in The Santissima Trinidad that "whatever may be the exemption of the
government, should not be construed as 'military non-commercial service' such as to bring a vessel within the protections of the SMCA." n171
public ship herself, and of her armament and munitions of war, the prize property which she brings into our ports is liable to the jurisdiction of our Courts ... ." n172 Whereas
the court relied upon a historic usage of military vessels to apply sovereign immunity to the Mercedes, it inconsistently looked to
contemporary law to find for Spain on the issue of the severability of the cargo from the
vessel. D. The Solution: Encourage the Exploration of the Ocean Floor and the Discovery of Lost Vessels Courts can encourage the
exploration of the ocean floor and the discovery of lost vessels by restricting the
application of sovereign immunity towards sunken vessels and severing the
relationship between a vessel and its cargo. Technological advances spurring
growth in the deep-sea exploration and salvage industry have already prompted
Congress to enact legislation encouraging the discovery of these vessels, n173 and courts
should follow suit with similar encouragement. The overeager application of the
doctrine of sovereign immunity discourages marine salvage firms from undertaking
these expensive and arduous ventures. n174 Odyssey Marine has operated at a loss for years and has shifted
its focus away from discovering shipwrecks and toward underwater mineral exploration. n175 Limiting proactive initiatives - like
Odyssey Marine's Amsterdam Project - by punishing those fortuitous companies that find vessels limits the
opportunities to discover and explore sunken vessels. 1. Expand the Application of the FSIA's Commercial Exception
Rolling back the broad application of sovereign immunity to vessels like the Mercedes
not only promotes industrial activities like Odyssey [*1035] Marine's salvage business, but is
also consistent with existing caselaw. n176 To accomplish this, courts do not need to adopt the following sterilization of the FSIA proposed
by Odyssey Marine in its brief to the Eleventh Circuit: "any logical reading of SMCA and background principles of international law incorporated by the FSIA compel the same
courts need to evaluate the role
of a vessel vis-a-vis its flag nation under the test elucidated in Weltover: is the vessel a
"private actor" or a "market regulator?" n178 By ultimately deferring to the opinions of
historians and the customs of colonial kingdoms from a bygone era to grant sovereign
immunity to the Mercedes, the court shrouds the vessel in an unwarranted protective
veil. Courts must balance the principle of comity against the commercial interests of salvage firms that desire to uncover sunken vessels and disturb their (at one time) final
resting place, but comity cannot serve as the primary motivation when ruling on an issue . This overadherence to the principle of comity is evidenced by the Eleventh Circuit justifying its
application of the ASA and the SMCA to the Mercedes due to the obligations the United States owed to Spain as laid forth
result: a vessel is not entitled to foreign sovereign immunity if it was engaged in commercial acts." n177 Instead,
in the Treaty of Friendship from 1902. n179 Based on this Treaty, the United States owed Spain the duty to "the same assistance and protection and the same immunities which
would have been granted to its own vessels in similar cases." n180 But this did not dictate that the courts of the United States should appease Spain by automatically grant the
Mercedes immunity from arrest. The United States owed Spain the duty to review its case under the same standard as the one granted to American ships. The Eleventh Circuit
failed to uphold this duty and examine the Mercedes under the framework propounded by the Supreme Court in Weltover. Instead, the Eleventh Circuit went to painstaking
lengths, as documented above, to demonstrate that only the release of the Mercedes from arrest would preserve the vessel's, and Spain's, sovereign immunity. Diplomacy, like
The court extended far
too much deference to Spanish authority [*1036] by holding that a frigate transporting
civilians and their cargo, for a carriage fee, acted in the capacity of a sovereign. Had the
court held that the Mercedes was not immune under the commercial exception by acting
as a "private player," not as a "market regulator," the court would have demonstrated
respect for the tenet of sovereign immunity without misconstruing it. 2. Allow the Severance of Cargo from
Its Vessel Under Certain Situations Courts sitting in admiralty should recognize , under certain conditions, a distinction
between a vessel and its cargo when defining the res and sever the two. The Eleventh Circuit primarily
justified its strict adherence to the non-severability of a vessel from its cargo based upon two narrow statutes, the ASA and the SMCA. n181 These statutes
are tailored to pertain specifically to abandoned vessels and sunken military craft - not
any sunken vessel. By misapplying these statutes to the Mercedes, the court ignores the
legislative intent of those statutes. The Congress Amicus specifically states that the SMCA does not apply to
military vessels "carrying private passengers and commercial cargo for freight, payable
to the government." n182 When the property of private citizens was placed in the cargo hold of the Mercedes in 1804, the property remained separate and
any delicate legal issue, requires the balancing of interests. The salvage of foreign-flagged vessels in the high seas is no exception.
severable from the property of the Kingdom of Spain. The title to the cargo transferred to Spain only when the Eleventh Circuit misconstrued the application of modern
legislation enacted by the United States Congress. A vessel and its cargo are inseverable in specific instances, as the ASA and SMCA demonstrate, but the Eleventh Circuit should
not have applied these restrictive pieces of legislation to this issue. VI. Conclusion Two hundred years after igniting Spain's entry into the Napoleonic Wars, the Nuestra Senora
de las Mercedes once again was at the heart of international conflict - Odyssey Marine Exploration, Inc. v. The Unidentified Shipwrecked Vessel.
By consenting
to a broad interpretation of the doctrine of sovereign immunity, the Eleventh Circuit's
holding serves as [*1037] a limitation to the search and discovery of vessels lost to the depths
of the ocean. By drastically limiting the commercial exception to the FSIA's application
of sovereign immunity, salvage firms are now in peril of losing any claim that can be
nebulously tied to the activities of a sovereign. To embolden the salvage industry, a
business that already operates at the margins of profitability, courts need to
expand both the commercial exception in the FSIA and the severability of a
vessel and its cargo.
US admiralty courts solve best – they are perceived internationally and
resolve foreign disputes over extraterritorial jurisdiction
Nafziger, President of American Branch of the International Law Association, ‘ 3 (James- Professor
Law at Willamette University, Winter, “The Evolving Role of Admiralty Courts in Litigation Related to
Historic Wreck” Harvard International Law Journal, 44 Harv. Int'l L.J. 251, HeinOnline//bueno)
The appellate opinions in Titanic and Sea Hunt are characterized by a new sensitivity to foreign interests and a greater fidelity to international principles of procedure and
If the Supreme Court has truly been in "retreat from its role as the confident
innovator of maritime common law,"98 the federal district and appellate courts
must perform that role within a realm of general maritime law that cries
out for innovation. The challenge of globalizing the law further is apparent. A fifth
stage may lie ahead in which U.S. admiralty courts will have emerged more
fully as surrogates for international fora in adjudicating issues related to
historic wreck-that is, underwater cultural heritage. IV. CONCLUSION In the absence of an effective international
forum in which to litigate disputes involving historic wreck, national courts are
essential . In the United States, federal courts sitting in admiralty have performed this surrogate
function. Their decisions on both procedure-largely jurisdiction-and substance have evolved through four stages of legal development. Dispute
resolution remains couched in terms of a dichotomy between salvage and finds. 99
Unfortunately, in its application to historic wreck, salvage law (not to mention the law of finds) is, indeed,
" musty ."'100 The jus gentium that is said to undergird the applicable general maritime law of salvage and finds is of doubtful
applicability and suitability to underwater heritage. As a foundation to manage historic wreck, it lacks
commonality and universality. In certain instances, the crucial requirement in salvage law of marine peril is so uncertain that it has itself imperiled
the consistency and appropriateness of the common law rules applied to historic wreck. In sum, the traditional law of salvage and finds ,
though indispensable for resolving issues of ownership and abandonment, for example, is inadequate to the task of resolving other
kinds of disputes related to historic wreck, particularly those that engage foreign and
international interests as well as scientific concerns. Sometimes salvage law may even be "antithetical to preservation of the archaeological value" of the underwater
cultural heritage. 0 1 A new regime of internationally accepted rules and standards,
constituting a true jus gentium, will help ease legal tensions among the
competing values that engage salvors, scientists, the public, and foreign
interests. 10 2 These tensions include what has been an endless problem of whether to classify a given wreck under the law of finds or the law of salvage-a choice
substance.
sometimes between Tweedledum and Tweedledee. No longer need that choice constrict all claims related to historic wreck. Recent judicial opinions reveal a third option, in
some cases, of applying international agreements and general principles of international law such as comity and concurrent enforcement jurisdiction. 10 3 Gradually, judicial
experience and comity are taming "the ferocious independence of federal admiralty courts.' 10 4 The law of salvage and finds will nevertheless continue to be important. A
redefinition of this body of law to include shared rules and principles of international law governing underwater cultural heritage poses no serious threat to responsible salvage
or to the normal practice of salvage law, particularly if the salvage is conducted with the consent of interested states. 0 5 Commercial incentives can contribute to a responsible
management of historic wreck. 106 The core principle is simply "preservation for the benefit of humanity."'107 In the progressive development of a new regime to govern historic
admiralty courts are playing a significant role. They seem to recognize that the traditional law of salvage and
finds no longer takes priority over new agreements, 08 codifications, and even amendments of
the law of the sea, as articulated by UNCLOS. Contrary to a common misinterpretation, article 303 of that treaty does not lock the law of the sea into some sort
wreck,
UNCLOS merely leaves salvage or admiralty rules of
ownership and other rules governing non-historic wreck alone because it does not directly address those matters
of eternal marriage with traditional salvage law.' 09
at all. Instead, UNCLOS accepts and thereby encourages the drafting of new agreements to define rights and obligations of states related to issues not properly addressed by
traditional salvage law, such as underwater cultural heritage. The UNESCO Convention on the Protection of the Underwater Cultural Heritage, as one of these new agreements,
The
competence of these fora is limited to disputes between states, however. National
courts--especially the admiralty courts of the United States, the superpower
of underwater exploration and excavation-must therefore play a significant
role in the resolution of international disputes. It remains to be seen whether
the admiralty courts, applying a more internationally sensitive body of general maritime law, will continue to emerge as
credible and responsible surrogates for international fora.
offers a menu of international fora to complement the current reliance on national (admiralty) courts to adjudi- cate issues involving historic wreck.
FYIs
Mercedes Ship
History of the Mercedes ship
Werner, JD Candidate University of Miami Law, ’13 (Dave, Summer, “Piracy in the Courtroom: How
to Salvage $ 500 Million in Sunken Treasure Without Making a Cent” University of Miami Law Review, 67
U. Miami L. Rev. 1005, lexis//bueno)
II. Shipyard to the Ocean Floor to the Courtroom:
The Life of the Mercedes
The Mercedes, thought to be forever lost to the depths of the ocean following its sinking in 1804, found
life once again following its discovery in 2007 by Odyssey Marine. After serving as a catalyst for Spain's
entry into a war with Great Britain in 1804, the Mercedes led Spain into another international conflict
over two hundred years later. This section traces the history of the ship to provide insight into the ship's
interaction with the various laws consulted by the court in Odyssey Marine. This section also gives a brief
overview of the political and military environment during the ship's life to provide a deeper understanding
of the Mercedes' historical context.
A. The Mercedes in Service to Spain
Built in Havana in 1788, the frigate Mercedes originally served the Kingdom of Spain as a warship. n5
When fully manned, the vessel required a crew of three hundred sailors and supported a full complement
of armaments, including variously sized cannon and mortar. n6 Although intended to serve as a warship,
the Mercedes served in other capacities, including as a troop and personnel transport. n7
The late eighteenth century was a period of upheaval in Europe in which Spain was allied with Great
Britain against France, but in a span of a few years found itself allied with France fighting Great Britain.
Spain and Great Britain allied against France from 1793 to 1795 during the War of Convention. n8 The
Peace of Basel, signed in 1795, ended hostilities between Spain and France. n9 Fearing the expansion of
France and Napoleon's rise to power, Spain entered into the Second Treaty of San Ildefonso with France
in 1796, effectively positioning itself against Great Britain. n10 In 1803, as hostilities ratcheted up
between Great Britain and France, Spain positioned to rearm itself and prepared for more [*1009]
conflict. This about-face in alliances meant that the Mercedes soon thereafter engaged in a naval
engagement against Britain, despite fighting alongside the nation during the War of Convention several
years prior. n11
Due to its alliance with France, Spain had to raise funds to support French military efforts. Spain ceded
territory to France to pay its debts, n12 but Spain also had to gather wealth from its American colonies to
maintain its payments. The Mercedes became entangled in this affair when Spain assigned it to a fleet of
ships transporting cargo and people between its American colonies and the European mainland. n13 To
affirm that this assignment was customary during the early 1800s, Spain cites law in its Eleventh Circuit
brief authorizing U.S. naval vessels to transport people and goods in such a manner during this era. n14
B. The Final Voyage of the Mercedes
Spain dispatched the Mercedes in 1803 to the port of El Callao (now Lima in modern-day Peru) to convoy
precious metals and cargo in support of Spain's alliance with France. n15 Once it was laden with cargo and
passengers, the Mercedes left El Callao to join three other Spanish frigates in Montevideo before
departing for Europe. n16 When the Mercedes embarked for Spain from South America, the ship had a
crew of 337, including nine officers, sixty-nine artillerymen and gunners, and sixty-three marines. n17
Passengers on the ship included the families of military men, civilians, and other personnel. n18 The
ship's cargo hold was fraught with coins, ingots, precious metals, and other wares. In all, the [*1010]
Mercedes was loaded with approximately 900,000 silver pesos, 5,809 gold pesos, and 2,000 copper and
tin ingots. n19 The Mercedes also had a full complement of its defensive instruments and was further
loaded with two obsolete bronze cannons, commonly called culverins. n20
During this tumultuous period, British ships were charged with seizing Spanish military and merchant
ships to prevent their cargo holds from filling the coffers of Napoleon and fueling his war effort. n21 As
the Mercedes neared Spain, the fleet was intercepted by a squadron of British warships on October 5,
1804. n22 When the fleet refused to surrender, the Battle of Cape Saint Mary commenced. Unfortunately
for the Mercedes, within minutes of the onslaught, the ship's munitions store exploded, destroyed the
entire ship, and killed all but fifty of the people aboard. n23 The battle ceased shortly thereafter when the
other three Spanish ships surrendered to the British. n24
C. Facts Disputed, to No Avail, by Odyssey Marine
The Eleventh Circuit rejected Odyssey Marine's depiction of the final voyage of the Mercedes. Odyssey
Marine contended that the Mercedes was not a warship, but instead had been recommissioned for a
commercial purpose. n25 The Mercedes carried between twenty-four and forty passengers and cargo, with
both receiving passage to Europe for a price. n26 Diplomatic cables between Spain and Britain, cited by
Odyssey Marine, indicate that seventy-five percent of the cargo aboard the ship was privately held. n27
Furthermore, Spain referred specifically to the ship in its declaration of war against Great Britain in 1804
following the sinking of the Mercedes. In the course of detailing the atrocities committed by Britain
against Spain, Spain went to great lengths to indicate that the Mercedes was on a peaceful mission
carrying civilians and their cargo and not serving as a warship. n28
Odyssey Case
Summary of Odyssey case
Burns, JD Candidate Tulane University School of Law, ’12 (Christine, Summer, “Finders Weepers,
Losers Keepers: The Eleventh Circuit Denies Salvage Company's Claims to a Sunken Military Vessel
Found in International Waters in Odyssey Marine Exploration, Inc. v. Unidentified Shipwrecked Vessel”
Tulane Maritime Law Journal, 36 Tul. Mar. L. J. 803, lexis//bueno)
I. Overview In March 2007, Odyssey Marine Exploration, Inc. (Odyssey) discovered the remains
of a shipwrecked vessel along with approximately 594,000 rare coins and other valuable artifacts
spread over 40,000 square meters of the ocean floor in international waters 100 miles west of the
Straits of Gibraltar. n1 Eager to begin its recovery efforts, Odyssey filed a complaint in the United
States District Court for the Middle District of Florida against "The Unidentified
Shipwrecked Vessel, its apparel, tackle, appurtenances and cargo," simultaneously asserting a
possessory claim pursuant to the law of finds and a salvage claim under the law of
salvage. n2 Shortly thereafter, the clerk issued a warrant directing the United States
Marshal to take possession of a small bronze block recovered from the shipwreck to
symbolize her arrest in rem and appointing Odyssey as the substitute custodian of the
vessel and her artifacts until further direction from the court. Upon Odyssey's publication of the
notice of arrest, the Kingdom of Spain filed a claim to the vessel , its contents, and cargo, and
subsequently filed a motion requesting more information identifying the vessel. n3 Alternatively, Spain
sought dismissal of Odyssey's complaint, claiming that it failed to "describe with
reasonable particularity the property that is the subject of the action" n4 in accordance with
the heightened pleading requirements for [*804] an in rem complaint in admiralty. In response,
Odyssey filed an amended complaint in which it plead ignorance as to the identity of the
wrecked vessel, responding to interrogatories from the court by stating only that the site may be linked
to the NUESTRA SENORA DE LAS MERCEDES Y LAS ANIMAS (MERCEDES). n5
This disclosure prompted Spain to file a motion stating that because the MERCEDES
was a Spanish Royal Navy Frigate, it was immune from arrest pursuant to the Foreign
Sovereign Immunities Act (FSIA), and, therefore, Odyssey's claims must be dismissed for
lack of subject matter jurisdiction. n6 Complicating matters further, Peru intervened, alleging that
the treasure aboard the MERCEDES originated in Peru or was produced by the Peruvian people;
therefore, the res belonged to Peru, not Spain. A total of twenty-five individual claimants also filed claims,
twenty-four of whom alleged that they were descendants of individuals with valuable cargo aboard the
MERCEDES. Despite Odyssey's insistence that there was insufficient proof that the
wreckage was actually that of the MERCEDES, the district court ultimately granted
Spain's motion to dismiss on December 22, 2009, with an order vacating the in rem arrest
and ordering Odyssey to return the artifacts removed from the site. n7 Odyssey, Peru, and
the twenty-five individual claimants appealed. The United States Court of Appeals for the
Eleventh Circuit affirmed the district court and held that because the sunken vessel was
still the property of Spain, the vessel was immune from arrest under the FSIA and,
therefore, all artifacts recovered by Odyssey must be surrendered to the Spanish Crown .
Odyssey Marine Exploration, Inc. v. Unidentified Shipwrecked Vessel, 657 F.3d 1159, 1184, 2011 AMC
2409, 2440 (11th Cir. 2011), aff'g 657 F. Supp. 2d 1126 (M.D. Fla. 2009).
II. Historical Background
The salvage of deepwater shipwrecks, a feat once thought impossible, has become increasingly achievable
as technology continues to advance. n8 However, current international law does not provide
specific parameters of jurisdiction over shipwrecks of historical interest that are [*805]
found in international waters. n9 U.S. courts have struggled to resolve disputes involving
historical and/or military shipwrecks because the issues presented cut across numerous
areas of law including admiralty, the law of the sea, the law of finds, sovereign
immunity, and property rights under federal and state laws. n10
Usually, either the law of salvage or the law of finds is applied to claims arising from the
discovery of a valuable shipwreck. n11 When the discovered vessel has not been
abandoned, the law of salvage requires three elements: (1) that the vessel be exposed to
a marine peril, (2) that the salvage service be voluntary, and (3) that the salvage
operation be successful. n12 Upon meeting these requirements, a volunteer who
preserves or saves the imperiled vessel is granted a right of compensation from the
owners. n13 On the other hand, the law of finds applies when the title to the vessel is lost or
when abandonment of the vessel is "proven by "clear and convincing evidence.'" n14 The
finder acquires title to the property regardless of where the property was found, hence
the expression "finders keepers, losers weepers." n15
At first, courts did not treat cases involving sunken warships any differently than those involving other
vessels, holding that all nonabandoned vessels were subject to the law of salvage and abandoned vessels to
the law of finds. n16 Changing with the tides of international law, particularly in regard to comity, courts
began giving special treatment to sunken military warships, with consideration given to
the age of the shipwreck. In 1980, the United States Deputy Legal Advisor of the
Department of State opined that courts should treat warships from the distant past as impliedly
abandoned because of the passage of time, but allow sovereigns to retain title to sunken warships from the
more recent past:
[*806] In the absence of an express transfer or abandonment of a U.S. warship sunk in the near
past (e.g., in the World War II era), it should be presumed that title to such vessels remains in
the U.S. Title to vessels sunk in the more distant past (such as during the 17th and 18th centuries)
would, of course, still be determined by the more conventional interpretation of
abandonment of that period. n17
Thus, the finder of an ancient sunken warship was granted title under the law of finds.
However, in 1982, the United Nations Convention on the Law of the Sea (UNCLOS) declared that
all warships, regardless of age, are immune from the exertions of jurisdiction by foreign
courts. n18
Despite the general consensus of international law immunizing warships from nonflag jurisdiction as
embodied in UNCLOS, the United States has not signed or ratified UNCLOS. Furthermore, although
UNCLOS establishes a doctrine of warship immunity, it does not expressly extend those
protections to sunken warships. For example, in Baltimore, Crisfield & Onancock Line, Inc. v.
United States, the United States Court of Appeals for the Fourth Circuit held that sunken
military vessels in fact lose sovereign immunity and are therefore subject to the in rem
jurisdiction of other nations. n19 By way of explanation, the court reasoned that warships fail
to retain a military identity after sinking and thus can no longer be vested with the
privileges and immunities granted to warships in active military service. n20
Similarly discounting the immunities established by UNCLOS, the Abandoned Shipwreck Act of
1987 (ASA) gave states jurisdictional control over historic shipwrecks (presumably including
military shipwrecks). n21 With the ASA, the United States asserted title to all abandoned
shipwrecks found in its territorial waters, and directed that such title be transferred to
the state in which the vessel is located, essentially derogating the laws of salvage and
finds. n22 Consistent with the ASA but prior to its passage, the Eleventh Circuit held in Klein v.
Unidentified, Wrecked & Abandoned Sailing Vessel that because an eighteenth-century British warship
was embedded in American soil, it [*807] was abandoned property of the United States rather than that
of her Majesty the Queen. n23
Conversely, Virginia was denied title to sunken military vessels found on its soil in Sea
Hunt Inc. v. Unidentified Shipwrecked Vessel or Vessels when the court upheld a
foreign sovereign's claim of ownership. n24 Despite the possibility of granting Virginia title to the
vessels under the ASA, the court embraced notions of international comity by effectively
heightening the standard of abandonment for warships, holding that governments must
expressly abandon sunken warships before salvors can claim salvage awards. n25 Because
Spain had vigorously asserted ownership over the shipwrecks at issue in Sea Hunt, the court determined
that Virginia could not show that Spain had somehow abandoned the vessels and that to do so would
abrogate the United States' obligations to Spain under the 1902 Treaty of Friendship and General
Relations. n26 Resort to such an antiquated international agreement has become de rigueur as courts
attempt to resolve these disputes. n27
Although foreign military vessels found in U.S. territorial waters were treated differently in Sea Hunt
because of treaty obligations, another basis for special treatment of foreign military vessels stems from the
FSIA, which provides the exclusive basis for suing a foreign sovereign in U.S. courts. n28
The FSIA specifies that "foreign states" - including their political subdivisions and agencies or
instrumentalities - are immune from the jurisdiction of U.S. courts unless one of the
exceptions to immunity set forth in the statute applies. n29 Importantly, these exceptions
include certain claims based on commercial activities, thereby allowing salvors of
sunken foreign commercial vessels to assert claims in U.S. courts. n30 In distinguishing
between commercial and sovereign acts, the FSIA expressly requires that acts be defined by
their [*808] nature, not their purpose. n31 The commercial activity exception applies when a state
"exercises "only those powers that can also be exercised by private citizens,' as distinct from those "powers
peculiar to sovereigns,'" n32 a protocol that necessarily excludes most warships.
Because the legal rights of interested parties are largely dependent on the location of the wreck, vessels
found in international waters add another sheet to the rigging. n33 U.S. courts have
justified adjudicating matters arising from ancient wrecks found within international
waters because it "is the only way to preserve wrecks that are often of extreme historic
interest from plunderers." n34 For example, in R.M.S. Titanic, Inc. v. Haver, the Fourth
Circuit invoked constructive in rem jurisdiction by holding that U.S. courts could
exercise extraterritorial jurisdiction over a famous historical wreck located in
international waters because certain objects she carried were tendered to the court . n35
Another justification for the special treatment of sunken military vessels has been the possible presence of
human remains. Hoping to provide its lost servicemen with proper respect, the United Kingdom passed
the Protection of Military Remains Act in 1986, which prohibits tampering with human remains found
within England's military vessels, designating them as underwater gravesites. n36 The United States
adopted similar laws because "disturbing United States unabandoned sunken military vessels, especially
those with deceased individuals, by private individuals strictly for the purpose of private gain is
considered to be improper." n37 The United States passed the Sunken Military Craft Act (SMCA) in 2004
to preserve the right, title, and interest to any sunken military craft for the dual purpose of protecting
military intelligence and affording proper respect to lost servicemen. n38 Under the SMCA, all U.S.
sunken military craft and their associated contents n39 are protected from disturbances,
including salvage efforts. n40 The term "sunken military craft" subject to the Act's protections
includes any portion of:
[*809] (A) any sunken warship, naval auxiliary, or other vessel that was owned or operated by a
government on military noncommercial service when it sank;
(B) any sunken military aircraft or military spacecraft that was owned or operated by a government when
it sank; and
(C) the associated contents of a craft referred to in subparagraph (A) or (B), if title thereto has not been
abandoned or transferred by the government concerned. n41
Even prior to the SMCA's enactment, the United States' position regarding its own sunken
military property was that regardless of where or when a given vessel or craft sunk, the
United States would retain title to all its military property. For example, in International
Aircraft Recovery, L.L.C. v. Unidentified, Wrecked & Abandoned Aircraft, a salvage company attempted
the salvage of a World War II Navy torpedo bomber found in international waters. n42 Thwarting the
efforts of the private salvage company, the Eleventh Circuit declared that the United States was the plane's
owner and was entitled to prevent the company from continuing its recovery efforts. n43 As some
consolation, the court suggested that the salvage company may be eligible for a salvage award for its past
efforts, but did not provide a calculation or make any recommendations as to a fair amount. n44
III. The Court's Decision
In the noted case, the Eleventh Circuit held that because the MERCEDES was a sunken
Spanish frigate, dismissal of Odyssey's complaint for lack of subject matter jurisdiction
was proper, thus affirming the district court's order directing Odyssey to return the
recovered property to the Spanish Crown. n45
The court addressed five issues on appeal. The first issue was the propriety of resolving the controversy of
Spain's motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) as opposed to a Rule 56 motion
for summary judgment. Odyssey argued that the Rule 56 standard - which views the
evidence in the light most favorable to the claimant - was the correct standard, because
the jurisdictional basis of its claim (FSIA) was intertwined with the merits of both its in
rem salvage and [*810] possessory claims. n46 The court dismissed that argument,
finding that the claims were not intertwined because although the FSIA provides the
jurisdictional basis, Odyssey asserted its claims pursuant to the law of salvage and of
finds. On these grounds, the court upheld the district court's use of the 12(b)(1) standard. n47
The second issue was whether the district court erred by refusing to conduct an oral evidentiary hearing
before ruling on the motion to dismiss. n48 As a general matter, such hearings are available, but not
required when resolving factual disputes underlying a motion to dismiss. The court noted that each party
had already benefited from a full opportunity to present evidence in light of the fact that "Spain's motion
to dismiss, Odyssey's response and Spain's reply were accompanied by a combined total of 125
attachments." n49 Therefore, the court concluded that the district court thoroughly and properly
evaluated the Rule 12(b)(1) motion.
The third issue on appeal was whether the court had subject matter jurisdiction to hear this dispute. n50
Because "federal courts have jurisdiction to hear claims against foreign governments
only if authorized by the [FSIA]," the Eleventh Circuit had to determine whether the res
remained the property of Spain and, if so, whether the FSIA granted the requisite
federal jurisdiction. n51 Although Odyssey argued that there was insufficient evidence to conclude
that the res was the wreck of the MERCEDES, the court examined the historical record of the
Spanish frigate and determined that there was sufficient evidence to reach such a
conclusion. n52 Luckily for Spain, the history of the MERCEDES - from her construction in
Havana to her destruction in the Battle of Cape Saint Mary - was well documented. Additionally,
Odyssey argued that the res could not be the MERCEDES because it was not an intact
vessel, but the court quickly determined that for purposes of sovereign immunity, the
vessel's current condition on the Atlantic seabed was irrelevant. The court found that because
the recovered res came from the MERCEDES, it remained the property of Spain. n53
Regarding the applicability of the FSIA, the court looked to § 1609 to determine that Odyssey's
presentation of various artifacts from the [*811] MERCEDES brought Spain's property constructively
within the territorial limits of the United States. n54 Odyssey attempted to utilize the "subject to existing
international agreements" language found in § 1609 to argue that the 1958 Geneva Convention on
the High Seas' restrictive approach to immunity should instead govern the case. n55 The Convention
provides, "Ships owned or operated by a state and used only on government noncommercial service shall, on the high seas, have complete immunity from the
jurisdiction of any State other than the flag State." n56 Odyssey contended that because
the MERCEDES was transporting private citizens and their cargo, it was engaged in
commercial service. The court disagreed, finding that "providing protection and safe
passage to property of Spanish citizens was a military function of the Spanish Navy,
especially in times of war or threatened war." n57 The court reasoned that a "foreign state is
commercially engaged when it acts like an ordinary private person, not like a sovereign, in the market"
and held that the paid transportation of private cargo and Spanish citizens did not categorize the
MERCEDES as a vessel performing commercial services. n58 Concluding that Spain was acting as
a sovereign rather than a private citizen, the court ruled the MERCEDES immune from
arrest under the FSIA. n59
The fourth issue before the court was whether the cargo aboard the MERCEDES was severable from the
shipwreck, such that even if the MERCEDES herself was immune from arrest, her cargo - which arguably
did not belong to Spain but to the individuals aboard the vessel - could still be claimed by the various
parties asserting interest therein. n60 The Eleventh Circuit had never considered whether cargo
aboard a sunken military vessel is entitled to sovereign immunity apart from the vessel, but ultimately
decided that the cargo and shipwreck were not severable for such determinations . n61 To
reach this conclusion, the court first looked at the language of other statutes governing shipwrecks,
namely the SMCA and ASA. Although neither the SMCA nor the ASA comment on whether cargo is
severable from the vessel for purposes of [*812] immunity, both statutes broadly extend the same
protections granted to sunken sovereign vessels to the cargo aboard those vessels. n62 The court was also
concerned that denying dismissal would fail to give full effect to international treaties, thus potentially
undermining the nation's promotion of international comity. n63 With these considerations, the court
held that the MERECEDES and her cargo were both immune from arrest, even if the cargo was owned at
some point by private individuals or had been salvaged from the wreck. n64
Finally, the court addressed whether
the district court erred in ordering Odyssey to
relinquish custody of the recovered res to Spain. n65 Odyssey argued that the order vacating the
arrest and "transferring" the res to Spain served as a substantive ruling on the merits that went beyond
the district court's power because it lacked subject matter jurisdiction. According to Odyssey, the only
action permissible under such circumstances was for the court to return the parties to their original
positions before the arrest. This would result in the MERCEDES being returned to Odyssey because
Odyssey was in possession of her cargo immediately prior to the arrest. n66 The court dismissed this
argument on grounds that when the warrant was issued, the U.S. Marshal was directed to
take possession of the MERCEDES and any future artifacts recovered from her before
the court appointed Odyssey as the substitute custodian. Thus, the district court was in
fact the custodian of the res prior to the issuance of the arrest and thus had the right to
relinquish the MERCEDES to Spain. Satisfied with this reasoning, the Eleventh Circuit
affirmed the district court's decision in its entirety. n67
Cargo vs Ship Controversy in SQUO
Bederman 11-K.H. Gyr Professor in Private International Law, Emory University (David J., October
2011, 44 Vanderbilt Journal of Transnational Law 853,
The essence of the actual possession rule is that in order for a foreign state to assert
immunity from the jurisdiction of U.S. courts in an in rem admiralty action, the res
(which is the object of the maritime lien being disputed by other parties) must be in the actual [*860]
possession of the sovereign at the time of its arrest. As already mentioned, the actual
possession rule is pervasive for all in rem admiralty actions involving sovereigns, not just
foreign states.
Indeed, the doctrinal origins of the rule can be traced to t he U.S. Supreme Court's 1869 decision
in The Davis. n36 At issue in that case was whether a cargo of cotton, owned and consigned
by the U.S. federal government and shipped onboard the Davis, was subject to a maritime
lien for salvage - the cargo having been rescued from marine peril by another party n37 - and
whether the in rem action to enforce that lien was maintainable against the United States. After reviewing
some prior decisions, n38 the Court, with Justice Miller writing, concluded that "proceedings in
rem to enforce a lien against property of the United States are only forbidden in cases
where, in order to sustain the proceeding, the possession of the United States must be invaded
under process of the court." n39 The Court went on to elaborate upon the contours of the rule - especially
what was meant by "actual" possession.
Weltover Case
Weltover case that established the new interpretation of commercial
exceptions to sovereign immunity
Song, Senior Staff Member American University Law Review, ’13 (Zhen, August, “Going For Gold: The
Meaning of "Commercial Activity" in the Foreign Sovereign Immunities Act in the Race for Buried
Treasure in Sunken Shipwreck” American University Law Review, 62 Am. U.L. Rev. 1771, lexis//bueno)
In Weltover, the Supreme Court
was asked to determine whether Argentina's issuance of bonds was a "commercial
activity" within the meaning of the FSIA. n74 As part of a debt-refinancing program, the Argentinean government issued bonds, or
B. Republic of Argentina v. Weltover, Inc.: Establishing the "Private Person Test" for Commercial Activity
"Bonods," to its creditors, which provided for repayment of its debt and interest in U.S. [*1783] dollars. n75 However, without consulting its creditors, the Argentinian
government unilaterally decided to postpone repayment due to insufficient foreign reserves. n76 The creditors then filed suit in the U.S. District Court for the Southern District
the
Supreme Court granted its petition for certiorari to address whether the FSIA afforded
Argentina jurisdictional immunity for its breach of contract. n78 When analyzing the
FSIA's definition of "commercial activity," the Court looked to the Act's legislative
history for guidance and reasoned that any interpretation of the term should remain
consistent with the restrictive theory of sovereign immunity. n79 The Court emphasized the importance of
of New York for breach of contract. n77 After Argentina's unsuccessful attempt to dismiss the case for lack of jurisdiction because of sovereign immunity,
differentiating between the "nature" of an act and the "purpose" of the act because of the statutory command to do so. n80 The Court defined the "nature" of an act as "the
outward form of the conduct that the foreign state performs or agrees to perform." n81 In contrast, the "purpose" of an act is "the reason why the foreign state engages in the
the Court
established the following "private person test": The question is not whether the foreign
government is acting with a profit motive or instead with the aim of fulfilling uniquely sovereign objectives. Rather, the
issue is whether the particular actions that the foreign state performs ... are
the type of actions by which a private party engages in trade and traffic or
commerce. n83 In other words, an act is sovereign in nature if it is the type of act in which only a
sovereign can engage. n84 If a private party can also exercise the same power and engage
in a similar activity as that of the sovereign, then the act sheds its sovereign nature and
becomes "commercial" activity. n85 [*1784] To illustrate this "private person test" for commercial activity, the Court considered the example of a
activity." n82 Armed with the understanding that the controlling factor in determining the commercial character of an act is its nature, not its purpose,
government's issuance of currency exchange regulations as a distinct exercise of sovereign power. n86 In contrast, a government's contract to buy army boots or bullets qualifies
as a commercial activity regardless of the reason behind the purchase because private parties can contract to do the same. n87 In providing these examples, the Court
Applying this
"private person test" to the facts of Weltover, the Court observed that Argentina's
Bonods possessed many commercial characteristics. n88 Not only can private parties own and trade the Bonods, but they are
also just as capable of issuing bonds similar to the Bonods. n89 Therefore, the Court concluded that Argentina engaged in
commercial activity because its act of issuing the Bonods was of a "nature" no different
from a private party's issuance of ordinary commercial bonds. n90
underscored the significance of distinguishing the "nature" of an act from its "purpose" when determining the act's commercial character.
FSIA
FSIA summary
Liendo, LLM from Georgetown Law, ‘7 (Horacio, Winter, “Sovereign Debt Litigation Problems in the
United States: A Proposed Solution” Oregon Review of International Law, 9 Or. Rev. Int'l L. 107,
lexis//bueno)
II. FSIA'S PROVISIONS
FSIA provides the sole basis for obtaining jurisdiction over a foreign state in United States courts. n22
FSIA establishes the general rule of foreign states' immunity and provides specific exceptions to that rule.
n23 "Thus, there may be no personal jurisdiction unless there is subject matter jurisdiction over a claim
where immunity is denied because the transaction comes within sections 1605 to 1607." n24
Section 1605 of FSIA provides a list of exceptions to jurisdictional immunity. The first two are relevant to
sovereign debt claims. The first exception provides that a sovereign state is not immune to jurisdiction in
United States courts if it has "waived its immunity, either explicitly or by implication." n25 It also
provides that such a waiver may not be withdrawn, either before or after a dispute arises. The idea behind
this last provision is to prevent a foreign state, which has induced a private person into a contract by
promising not to invoke its immunity, from going back on its [*114] promise after the dispute arises and
then seek to revoke its waiver unilaterally. n26 Note that in 1976, Congress already recognized that
waivers of immunity could lead to deceitful situations and designed this provision to prevent such
outcomes.
The second exception establishes that a foreign state is not immune from jurisdiction in any case in which
the action is based upon (i) a commercial activity carried on in the United States by the foreign state; (ii)
an act performed in the United States in connection with a commercial activity of the foreign state
elsewhere; or (iii) an act outside the territory of the United States in connection with a commercial activity
of the foreign state elsewhere and that act causes a direct effect in the Unites States. As it is written, this
provision imposes a two-fold analysis to determine if a particular activity falls into this exception: its
commercial nature and its contact with the United States. n27 In defining a "commercial activity carried
on in the United States," FSIA establishes the rule of "substantial contact." n28 Terms like "substantial
contact" and "direct effect" include a very broad range of acts into this exception. The main result is that
United States courts have attracted several claims that involve international transactions which have only
secondary effects in the United States, as discussed in Part III.
The definition of "commercial activity" has been the subject of various articles and publications. FSIA
broadly defines commercial activity as the "regular course of commercial conduct or a particular
commercial transaction or act." n29 There is a presumption of commerciality when the activity is
customarily carried on for profit. n30 In the case of [*115] Republic of Argentina v. Weltover, n31 which
will be analyzed in Part III, the court established that issuance of sovereign bonds is a commercial activity
and falls within the exceptions of §1605 of FSIA. n32 Moreover, the same case established a very low
standard for determining a "direct effect" in the United States. n33 Thus, establishing jurisdiction over
sovereign debt claims presents no serious problems. Conflicts arise, however, upon execution.
Adjudications In Rem
US court jurisdiction for salvage
Wright, JD Candidate Tulane University School of Law, ‘8 (Brooke, Winter, “Keepers, Weepers, or No
Finders at All: The Effect of International Trends on the Exercise of U.S. Jurisdiction and Substantive Law
in the Salvage of Historic Wrecks” Tulane Maritime Law Journal, 33 Tul. Mar. L. J. 285, lexis//bueno)
In the Titanic litigation, the Fourth Circuit exercised
"constructive in rem" jurisdiction over a shipwreck two-and-a-half miles beneath the waves of the North Atlantic, while in the
Black Swan, Spain approached a U.S. court for adjudication on the rights to a vessel or
A. U.S. Jurisdiction over Shipwrecks in International Waters
vessels of unknown origins. The nature of in rem jurisdiction, and the universality of the law of salvage, allow these rulings to be enforceable "against the world." 1.
(Constructive) In rem Jurisdiction The defendants in R.M.S. Titanic, Inc. v. Haver (Titanic I) disputed the court's ability to adjudicate their rights to the wreck of the TITANIC.
n115 To address this issue, the Fourth Circuit first explained the distinction between in personam jurisdiction and in rem jurisdiction: While actions based on both types of
actions in
rem are prosecuted to enforce a right to things, whereas actions in personam are those
in which an individual is charged personally. n116 That is, actions in rem adjudicate rights in
the specific property before the court. Therefore, adjudications in rem affect the
characteristics - i.e., ownership - of the property, and this is proper because the
property itself is within the court's jurisdiction. n117 Consequently, such actions "carry no
in personam significance, other than to foreclose any person from later [*298] seeking
rights in the property subject to the in rem action." n118 In rem actions require nothing more than that the res be brought into
jurisdiction are grounded on the principle that every State possesses exclusive jurisdiction and sovereignty over persons and property within its territory,
custodia legis - the jurisdiction of the court. n119 The question then becomes, how is in rem jurisdiction possible over a vessel located, not within the court's jurisdiction, but at
the court will exercise constructive jurisdiction over
the entire vessel pursuant to obtaining actual in rem jurisdiction over some part of the
vessel: n120 The propriety of exercising in rem jurisdiction over an entire ship wreck within the court's territorial jurisdiction when only part of that wreck is actually
presented to a court rests upon the fiction that the res is not divided and that therefore possession of some of it is constructively possession of all. n121 The
Supreme Court of the United States gave implicit approval of this form of jurisdiction in
California v. Deep Sea Research, n122 when it acknowledged a district court's
jurisdiction over an entire shipwreck when the salvor offered a few artifacts from the
wreck, including a brass spike from the ship's hull, as symbolic of jurisdiction over the entire wreck. n123 However, the
the bottom of the ocean thousands of miles away? In such instances,
Titanic I court went on to point out that when the res is not in the court's actual or constructive possession, "traditional principles of in rem jurisdiction" prevent the court from
adjudicating rights in the res such that third parties may be effectively bound. n124 To act otherwise would amount to impermissible extension beyond a nation's sovereign
territorial limits, n125 unless the state exhibiting such behavior had the consent of other nations - that is, an agreement that such an exercise [*299] of jurisdiction would be
in rem jurisdiction
presents difficulties when applied in circumstances like those surrounding the Titanic
and the Black Swan. A vessel lying in international waters is beyond the exclusive power
of any one nation's courts; what adjudicative power does a U.S. court have to adjudicate
in such a situation that a Spanish or French court may not also concurrently attempt to
exercise? n128
recognized by them. n126 Thus, the limits of in rem jurisdiction are effectively the limits of territorial sovereignty. n127 For these reasons,
Inherency
Squo Fails – Mercedes Dispute
No current resolution about the conflict between commercial and historical
interests – framework is disorganized
Nelson ’10 (Michael R, Candidate for Juris Doctor, SMU Dedman School of Law (2011); B.A.
Government, University of Texas at Austin (2007); B.S. Communication Studies, University of Texas
(2007); Member, International Law Review Association and winner of the 2009-2010 Quill & Torch
award, “Finders, Weepers-Losers, Keepers? Florida Court Says U.S. Company Must Return Recovered
Treasure to Kingdom of Spain,” Summer 2010, Law and Business Review of the Americas, Lexis)//ER
it is clear that not all of the parties to this lawsuit are
convinced that the rights to the Mercedes and her precious cargo have been adequately
resolved. Peruvian Chief Prosecutor Katty Aguize insists that Peru has "sufficient and reasonable indications, as well as rights to claim the treasure and have it returned
to Peru." n89 But the fact that Peru was not a part of this case until late 2008 put their position at
a significant disadvantage. Despite swiftly dispatching Peru's interests, Judge Pizzo himself admitted "that the Viceroyalty of
Peru might have claims, but that there was no jurisdiction to handle those claims," having
III. CONCLUSION In spite of Judge Pizzo's findings,
already concluded that the wreckage was a Spanish naval vessel, and thus, subject to sovereign immunity. n90 Nevertheless, Peru intends to appeal Judge Pizzo's
recommendation that Odyssey return the rescued treasure to Spain. n91 Unlike Odyssey, the Peruvian government does not dispute that the vessel carrying the gold and silver
was the Mercedes that belonged to Spain, but instead relies on the fact that all of the valuable objects whose ownership is being determined originated in Peru. n92 In short,
Peru claims that it has the right to the trove of treasure "because it was looted in the first place." n93 Odyssey will also appeal Judge Pizzo's recommendation, and has claimed
Stemm remains confident that his firm will prevail
and that "ultimately the judge or the appellate court will see the legal and evidentiary
flaws in Spain's claim, and [they'll] be back to argue the merits of the case ." n95 With all the political
that it is "surprised at the outcome" of the case thus far. n94 Odyssey CEO
and legal pressure mounting on Judge Pizzo and the Eastern District of Florida, though, it remains to be seen if either appeal will gain any traction or if Odyssey will be forced to
mount its offensive in Spanish Courts. As it relates to future discoveries, Spain obviously has a different viewpoint of treasure-recovery than Great Britain, but as it concerns the
Mercedes, it seems, what is done is done. So again,
what is to be done with all of that gold? [*599] It is doubtful that Spain would elect to
dump the silver and gold coins back into the sea, and there are hundreds of thousands of duplicates of whichever coins they could select to display in museums. Although the
Odyssey has incurred "millions and millions of dollars" in costs
associated with the exploration and excavation of the Black Swan site. n96 If Spain is to keep everything
specific amount is unknown,
brought up, should Odyssey not be compensated for its salvage work? Why is an arrangement like the one Odyssey reached with Great Britain so out of the question?
Should the favored Law of Salvage fall by the wayside because cargo found on the ocean
floor was aboard a naval vessel and not a merchant vessel? What about Peru's claim?
Perhaps light will be shed on these questions should litigation continue in Spain. As mentioned previously, the concepts involved in this sort of litigation have existed for
this particular case is demonstrative of the high costs
involved in this sort of litigation and "highlights the need to resolve the issue of
ownership for ancient wrecks found in international waters." n97 It is a prime example of
the conflicts that exist "among finders/salvors, owners, governments, preservationists,
and cultural property advocates," and invites questions as to whether or not "the current
laws governing shipwrecks in international waters" are simply "inadequate." n98 Dozens of sunken
vessels are discovered every year, yet there has been little, if any, progress in arriving at a method of
dealing with shipwrecks that would alleviate the need for such costly international
litigation. That being said, predicting what sort of guidelines the international community could agree upon to help the current situation is difficult given the subject
matter and wide range of opinions. Instructing private firms like Odyssey to stop looking for ship wreck
locations may inhibit the discovery and preservation of any such wrecks at all. n99 In addition,
thousands upon thousands of years. Among other things,
unfounded guidelines for staying away from locations that could literally be bursting at the seams with valuable artifacts promises to "promote clandestine behavior on the part
of salvors" and could move interesting specimens that are already out of human touch into the abyss of the black market. n100 Hopefully a compromise can be made that would
protect the sanctity of such sites while providing an opportunity to ensure that any cultural artifacts are given an opportunity to be admired by the public and not selfishly
poached or exploited.
Black Swan proves status quo fails
Blunt 12- J.D. Candidate, Georgetown University (Amanda, “New framework of international
investment law”, Winter 2012, 24 Georgetown International Environmental Law Review 195)//kw
The Black Swan case demonstrates three problems with the current state of the law. First
and most significant, it demonstrates the multiplicity of conflicting legal positions stemming
from fractured national and international law. Second, it proves the dual value of UCH to
sovereign nations and private enterprise. Third, it exemplifies the difficulty other nations
have with the application of U.S. federal admiralty law to historic wrecks in
international territory. n110 As advanced technology makes commercial salvage more lucrative and
prevalent, similar cases will follow. n111
Squo Fails – Shipwreck Regulations
The current regulatory framework for wrecked ships between states is
inefficient and unproductive
Neil ’11 (Jeremy, J.D. from New York Law School in May of 2010, “Sifting Through the Wreckage: An
Analysis and Proposed Resolution Concerning the Disposition of Historic Shipwrecks Located in
International Waters,” New York Law School Law Review, Lexis)//ER
The most intriguing and far-reaching aspect of the
Convention is its prohibition on the commercial exploitation of UCH. One of the
objectives of the Convention is that "[u]nderwater cultural heritage shall not be
commercially exploited." n67 Further, the Annex of the Convention, describing the rules to be followed, states: The commercial
exploitation of underwater cultural heritage for trade or speculation or its irretrievable
dispersal is fundamentally incompatible with the protection and proper management of
underwater cultural heritage. Underwater cultural heritage shall not be traded, sold, bought or bartered as commercial goods. n68 In an apparent
attempt at compromise, the Convention allows for "deposition of underwater cultural heritage, recovered in the course of a research project." n69 However, this
deposition must not include the sale of any items deemed to be UCH. n70 Therefore, the result of the ban on
A. The Convention's Ban on Commercial Exploitation
commercial exploitation is an attempt to completely destroy a commercial entity's profit motive in retrieving wrecks in the first place. If the Convention becomes customary
the consequence of the ban on commercial exploitation would be a near or
complete annihilation of the historic wreck salvage industry. Without a profit motive, commercial salvage
international law, n71
companies will likely not survive. Some for-profit companies, like OMEX, are publicly owned and thus owe a duty to their shareholders that they would be unable [*911] to fulfill.
It appears that the only companies that would be able to survive in such an
environment would be companies that have enormous amounts of private capital, notfor-profit organizations, and government-funded entities. n73 However, due to the immense costs associated with this
n72
business, it is unlikely that even those organizations would be able to survive for long, if at all. n74 Even if all commercial salvage companies engage in a type of looting piracy
that does not comply with any appreciable archaeological standard of care, the
Convention's prohibition on commercial
exploitation still has little merit. The Convention essentially places an affirmative duty on states to find, recover, and regulate UCH themselves.
The Convention takes a view of international law that focuses primarily on states as the sole actors in international disputes. The Convention requires that state parties
"cooperate in the protection of underwater cultural heritage," n75 "preserve underwater cultural heritage for the benefit of humanity," n76 and "take all appropriate measures in
conformity with this Convention and with international law that are necessary to protect underwater cultural heritage." n77 It therefore creates a new regime under which states
need to coordinate with each other and spend money on the discovery of wrecks and the resolution of disputes. It is wishful thinking to suggest that governments are going to
spend the amount of money necessary to locate, [*912] protect, and perhaps recover historic wrecks. n78 As a result, many, if not all, presently lost wrecks will not be located and
the general public will not receive any gain in cultural education. By attempting to protect historic wrecks from individuals and corporations who employ no archaeological
the Convention has succeeded in creating a sort of moratorium on location and
recovery efforts. This moratorium seems incompatible with the stated "value of public education to contribute to awareness, appreciation and protection" of
standards,
historic wrecks asserted by UNESCO. n79 In an attempt to protect the historic wrecks from potential damage or destruction, the Convention has put the onus on successive
generations to find and locate these historic wrecks. This diminishes the awareness, education, and appreciation of the world public, as well as the likelihood of wrecks being
found; without the competitive salvage industry, less money will be put into research and development of new technologies, extending the amount of time taken to locate the
wrecks, if they can be located at all. In addition, by eliminating the commercial incentive of salvage companies and thereby limiting the number of wrecks that can be found and
located,
many wrecks in peril of being damaged and destroyed will receive no protection at
all. The drafters of the Convention seem to assume that because not all wrecks are considered to be in marine peril, all wrecks are perfectly safe in their present conditions.
Realistically, this principle cannot be supported. Human intrusion into the ocean is a well-documented concern
of marine scientists everywhere. n80 Waste and fishing activities in certain high-traffic
locations like the English Channel place wrecks in serious and [*913] immediate peril. n81
Similarly, the ocean floor is subject to many dangerous natural disasters, such as underwater volcanoes and earthquakes. If money is not proactively being spent to locate these
wrecks, they cannot be protected. The Convention can therefore be seen as underinclusive; while it seeks to protect UCH and to educate the world public, it simultaneously
eviscerates the likelihood that many of the world's shipwrecks will be found in the first place and does not protect wrecks from natural disasters or man-made intrusions into the
Proponents of the Convention will likely point out that the Convention leaves open
the possibility of salvaging wrecks if they are actually in danger. n82 Article 12 allows "[a]ll States Parties [to]
ocean.
take all practicable measures . . . to prevent any immediate danger to the underwater cultural heritage, whether arising from human activity or any other cause." n83 Two
the convoluted nature of the regime created by the
Convention requires consultation and agreement between multiple state governments. n84
It is unrealistic to believe that governments will be able to come together quickly enough
problems with this belief undermine its assumption. First,
to save a ship in danger of being damaged or destroyed. The time-consuming nature of
salvaging a wreck and the bureaucracy created by the Convention prevents parties from
acting with anything resembling swiftness. Second, the reality of a wreck in danger
being located is dramatically decreased due to the likely decline in the commercial
salvage industry. Simply put, with fewer people looking for historic wrecks, it is likely that
fewer wrecks will be located. In the end, it is more likely that a ship in peril of being
damaged or destroyed will be damaged and destroyed unbeknownst to anyone than it is
that the international community under the Convention will come together quickly
enough to save a wreck from destruction. UNESCO's hypocrisy with regard to the Convention is epitomized by the recent discovery of a
British ship. The ship in question had been lost at the bottom of the ocean since 1744. OMEX would not have been able to justify
spending the massive amounts of capital it needed [*914] to locate the ship without the
potential for commercial gain. In response to the discovery, Koichiro Matsuura, then Director-General of UNESCO, carelessly stated, "I am
delighted that such an exceptional example of underwater heritage has been located. The cultural and scientific value of this artefact is considerable . . . [and I trust that the
UNESCO's hypocrisy with regard to the Convention; they
recognize that the discovery of sunken historic ships is desirable and provides the world
community with considerable gains in cultural and scientific education, but gloss over
the fact that it was only a for-profit entity that could have located the ship in the first
place. If, as Matsuura would prefer, the ship found is not used for commercial gain, it likely would not have initially been found at all. The Convention, in its attempt to
recovery of the ship] is not used for commercial gain." n85 This statement typifies
preserve and protect historic wrecks, essentially encourages the decline of the commercial salvage industry and thus severely limits the amount of entities searching for historic
The answer to the problem of protecting historic wrecks should not be to limit the
amount of entities searching for wrecks, but to provide more adequate protection while
maximizing the chance that wrecks will be found.
wrecks.
Status quo fails
Stuart, 11– Associate at Larzelere Picou Wells Simpson Lonero, LLC (Cory T., “ARTICLE: THE WAKE
OF DISCOVERY--A PRIMER ON LEGAL, HISTORICAL, AND PRACTICAL SHIPWRECK SALVAGE
DYNAMICS”, 9 Loy. Mar. L.J. 45, Lexis-Nexis, NG)
The damage that resulted to the waters in Biscayne, however, were a reality. The staff discovered fresh pits that had been dug into the ocean floor, a disturbing sight for
environmental advocates. n148 While the National Park Service had won a four-year legal battle to secure control of the waters, this victory did not prevent rogue "looters" from
attempting to pillage the protected areas. n149 In fact, although the Park Service does not itself allow treasure hunting in waters like those found in Biscayne, "many
shipwrecks are open to salvage because state governments often control ocean bottoms
within park boundaries." n150 Opponents of under-regulated salvage point to these types of
occurrences to buttress their cries for more stringent environmental safeguarding. This same
article, published in National Parks Magazine, also alludes to a circumstance that occurred in California in 1980 where a husband and wife team of salvors was able to chip away
at a sunken ship under the supervision of a boat captain. n151 They belonged to a diving club, and although they were searching in protected waters, no park ranger was able to
uncover the operation while the illegal activity was ongoing. However, when they returned to shore they were harshly greeted by local law enforcement and park officials. Heavy
federal regulations "protecting these
resources superseded the rights the defendants had claimed under Admiralty Laws of
Finds and Salvage." n152 Additionally, the incident sheds light on the growing concern that park officials simply do not have
the resources necessary to prevent these environmentally destructive and illegal
incidents, or to prosecute the offenders in court. As well, "the Park Service has to walk a fine line between protecting underwater
archaeological treasures and responding to the growing public enthusiasm for wreck diving." n153 Historians and environmental zealots point to the fact that salvors
often have done little to no research about their operations or the areas on which they
are conducted. Instead, they often seek to advance economically simply by "blowing
holes in the seabed." n154 [*67] Advocates of increased scrutiny of salvage and preventative regulation can certainly address these and other episodes, but as
fines were levied and the boat's captain served jail time. The episode demonstrated that
with most narratives, there is another side to the story. A review of various newspapers and magazines yields the realization that positive environmental contributions can also
emanate from salvage activities, although coverage of responsible excavation is certainly outweighed by negative treatment. A 2009 article published in the Jupiter Courier
reveals the story of Captain Dominic Addario--an authority on environmentally responsible salvage who has written a book on the proper procedures following an underwater
discovery. n155 His current salvage operations promote environmental consciousness. The Captain hopes to use sand that is excavated in the course of his efforts to aid in the
replenishment of dunes in Florida. n156 Additionally, his plan will be used in "bolstering sea turtle nesting habitats." n157 Such efforts present motivations that are in stark
contrast to those conveyed by park looters, and perhaps serve to balance this debate's scale. Protecting the environment in the context of wreck salvage is certainly not limited to
such individual efforts as those of Captain Addario. A 2007 printing of Oil Spill Intelligence Report Magazine details a five-day conference held in Nairobi, Kenya by the
International Maritime Organization. The environmentally conscious convention addressed the legality of removing wrecks that have the "potential to adversely affect safety,
1,300 shipwrecks still lie beneath the earth's various
water supplies--likely a very conservative estimate. n159 As interest in excavating these ships steadily increases,
concerns about preserving the environment will similarly escalate. The periodical serves as evidence that
environment, or goods and property." n158 The article estimates that
environmental protection is becoming a paramount concern in the modern salvage environment. n160 Meetings like the 2007 Nairobi convention have shaped the legal world's
response to the threat that some argue salvage poses to ecological sanctity, [*68] but it appears that the jury is still out on whether or not the world's salvage industry can truly
embrace environmental safeguard.
Squo Fails – Court Battles
Current litigation practices and court battles are costly and inefficient –
also ignores cultural significance of wrecks
Curfman 8 - J.D. Candidate (2009), Washington University School of Law; B.A. Economics (2005),
Duke University (David, “NOTE: THAR BE TREASURE HERE: RIGHTS TO ANCIENT SHIPWRECKS IN
INTERNATIONAL WATERS - A NEW POLICY REGIME,” Washington University Law Review, 2008)
//JG
conflict may arise between the various parties who
might wish to assert ownership claims. Such discoveries often prompt litigation to
determine ownership rights to wrecks and their contents. n18 Litigation is both costly and
time consuming. n19 The costs of litigation add to the already expensive costs of mounting
an expedition to find and recover these wrecks. n20¶ Because of ambiguities in the law, as interpreted by U.S. federal courts,
multiple parties may assert ownership claims: The first finder may assert claims against subsequent finders; the previous owner
Whenever a wreck is discovered and recovered on the high seas,
may assert a claim against the finder; and, depending upon the location and nation of origin of the wreck, national or state governments may assert ownership claims. n21 [*184]
Although numerous parties may have standing to assert claims under the current law, many others with putative claims are without recourse.¶ In addition to owners, finders,
and governments, others often wish to protect and preserve shipwrecks for their non-market value to science and to society. Shipwrecks can have non-monetary value in the
form of cultural or archaeological worth. n22 Archaeologists and salvors disagree over the proper methods to use in salvage in order to preserve shipwrecks' archaeological
value. n23 "At the center of this conflict is a difference in preference between preserving historic shipwrecks on the sites where they are discovered and the belief that shipwrecks
are in "marine peril' and need to be salvaged to be protected." n24¶ Besides those who wish to protect shipwrecks for their scientific value, many assert that shipwrecks represent
For proponents of a cultural property classification, litigation is
inadequate because they lack standing. However, specially created statutes and treaties
have been used as a means to protect certain wrecks from the ownership claims of other
claimholders. n26 For example, Congress passed special legislation to protect the wrecked RMS Titanic. n27 Specially passed laws are
usually the most effective means of redress concerning the disposition of shipwrecks in
international waters for proponents of cultural property. n28 Unfortunately, these means
are often cumbersome. n29¶ [*185] There are presently a number of conflicts between those
parties currently represented in litigation and those wishing to assert a voice. n30 The
existing litigation structure does not afford standing to all potential stakeholders. n31 To
better accommodate all parties, the international community should reform the current
legal framework for resolving ownership claims to shipwrecks in international waters.
cultural property in one form or another. n25
Squo Fails – Law of Salvage
Law of salvage is silly
Curfman 8 - J.D. Candidate (2009), Washington University School of Law; B.A. Economics (2005),
Duke University (David, “NOTE: THAR BE TREASURE HERE: RIGHTS TO ANCIENT SHIPWRECKS IN
INTERNATIONAL WATERS - A NEW POLICY REGIME,” Washington University Law Review, 2008)
//JG
The determination of which law applies to a shipwreck rests upon whether the property
can be considered "abandoned" in the legal sense of the term. It is not sufficient that the crew
of a sinking vessel decided to "abandon ship" and is thus no longer in possession or control of the
vessel. More is needed for a court to rule that a shipwreck is abandoned, but how much
more and what facts are needed is unclear. The legal test for abandonment in the
context of shipwreck discoveries is ambiguous. As a result, application of the law of
salvage or the law of finds is unpredictable .
Squo Fails – UNCLOS
UNCLOS fails at ownership determination
Curfman 8 - J.D. Candidate (2009), Washington University School of Law; B.A. Economics (2005),
Duke University (David, “NOTE: THAR BE TREASURE HERE: RIGHTS TO ANCIENT SHIPWRECKS IN
INTERNATIONAL WATERS - A NEW POLICY REGIME,” Washington University Law Review, 2008)
//JG
UNCLOS does not effectively secure the preservation of wrecks found on the high seas.
While Article 149 discusses preservation, it fails to define "objects of an archaeological and
historical nature." n98 Moreover, since Article 303 cannot affect ownership rights, it
cannot effectively operate in the presence of an ownership claim. n99 The goals of
preservation conflict with the property rights affirmed in Article 303. n100 As far as
preservation is concerned, under UNCLOS, "it is clear that the best protection the [U.S.]
government can offer a sunken vessel in international waters is a statute that protects
the shipwreck from American salvors and obligates the government to enter into treaties
with foreign nations to respect the archaeological value of the wreck." n101¶ UNCLOS does
provide for the creation of an administrative body: The International Seabed Authority (the "Authority").
n102 This Authority is intended to "organize and control activities in the Area." n103 Currently, it
addresses issues of mining and exploration. n104 Although UNCLOS does not empower anybody to
dispose of shipwrecks, if such power were granted, the Authority would be the logical body to administer
it. n105
Squo Fails – ASA
ASA bad – federal-state battles
Curfman 8 - J.D. Candidate (2009), Washington University School of Law; B.A. Economics (2005),
Duke University (David, “NOTE: THAR BE TREASURE HERE: RIGHTS TO ANCIENT SHIPWRECKS IN
INTERNATIONAL WATERS - A NEW POLICY REGIME,” Washington University Law Review, 2008)
//JG
Many ambiguities remain under the ASA. It does not resolve the issue of what
constitutes abandonment, n113 and the Supreme Court has done little to resolve this
ambiguity. n114 The ASA is also not clear as to what [*196] constitutes a historic
shipwreck, stating that it applies to wrecks that are "historically significant." n115 The Seventh Circuit
has identified two methods for determining historical significance for wrecks found in territorial waters.
n116 "The court first held that "embeddedness' is an indicia of historic significance. Second, the court held
that if the shipwreck is eligible to be listed in the National Register, then it is historically significant under
the ASA." n117 Further, some have questioned the constitutionality of the ASA on the
grounds that it explicitly abrogates the admiralty laws of salvage and finds . n118 In doing
so, the ASA arguably deprives the federal courts of admiralty jurisdiction and allows the
states to adjudicate the disposition of certain shipwrecks under state laws.
FSIA Advantage
Internal Links
Future Conflicts Coming
Failure to resolve Odyssey case causes future conflicts with other nations
Doran, JD Candidate Southwestern Law School, ’11 (Kevin, “Adrift on the High Seas: The Application
of Maritime Salvage Law to Historic Shipwrecks in International Waters” Southwestern Journal of
International Law, 18 Sw. J. Int'l L. 647, HeinOnline//bueno)
the Black Swan not only illustrates the current American approach to historic wreck salvage in international
waters, but serves as a potent example of the problems that can arise where American courts
step into the jurisdictional void. While the case of the Titanic involved competing interests from private salvage operators, the private salvors in
the case of the Black Swan faced off with a sovereign nation. Further litigation has been prevented only through the
good fortune of a bi-lateral treaty between Spain and the United States.59 However, it is
easily foreseeable that a similar conflict might arise between less friendly
countries. Such a conflict may have no easy resolution and could lead to
long lasting resentment. Bi-lateral treaties are not reliable arbiters of disputes over international shipwrecks. Black Swan is a
code word used by Odyssey Marine Exploration, Inc., an American salvage company, to describe a colonial period site in
The more recent, and as yet not fully resolved case of
international waters off the coast of Spain.60 Odyssey has been largely successful in its attempt to keep detailed information about the site hidden, including its exact location
and the items recovered. 6 However, it is known that Odyssey has recovered over 500,000 silver coins as well as gold coins, worked gold and other artifacts.62 Spain, having
in's
possible claim was dismissed when it was discovered that the wreck at issue was a 20th
century passenger liner, but potential stumbling blocks remain as Odyssey continues to
explore several other sites in the area, which some evidence suggests may be the locations of sunken Spanish ships.64
some indication that the find was a Spanish vessel, filed a claim asserting that it did not intend to give up its property rights to any Spanish vessels or cargo.63 Spa
US Courts Key
US courts key and swamp international law precedents
Wright, JD Candidate Tulane University School of Law, ‘8 (Brooke, Winter, “Keepers, Weepers, or No
Finders at All: The Effect of International Trends on the Exercise of U.S. Jurisdiction and Substantive Law
in the Salvage of Historic Wrecks” Tulane Maritime Law Journal, 33 Tul. Mar. L. J. 285, lexis//bueno)
IV. Do Current International Trends Threaten a Change to Jus Gentium and Application of U.S. Law in Cases Like Titanic and the Black Swan? According to such authorities as
the Fourth Circuit, salvage is an "ancient and time-honored part of the maritime jus gentium." n211 But as the above examples indicate, there may be a trend in international law
away from the traditional notions of wreck salvage, in favor of regarding wrecks as public property and cultural heritage. If such a trend were to gain force and momentum, it
could shift the tide of international law, at least as far as historic wrecks and wreck salvage are concerned. Moreover, not all jurisdictions with maritime interests have adopted a
U.S.-style application of the laws of salvage and finds. n212 American [*311] courts, too, have begun to address cases involving historic wrecks as different from traditional
The technology to explore and salvage historic
wrecks is simply so recent that no sufficient body of law has developed internationally to
delineate clearly what can properly be considered as agreed upon by all nations - a necessary
aspect of jus gentium. For instance, despite American courts' willingness to find that historic wrecks, by
their very situation underwater, sufficiently meet the "danger" element of a salvage
claim, UCH Convention proponents suggest that artifacts are "well preserved under
water, owing to the low deterioration rate and lack of oxygen, and ... therefore not per se
in danger." n213 Neither the proclamation of American courts nor the contradictory assertions of an inchoate international convention body are sufficient to allow a
final determination of the appropriate principle of law. In this sense, the trend represented by the UCH Convention poses a
threat to U.S. courts' application of the laws of salvage and finds to international historic
wrecks. Despite their reference to "Rhodian Code" and the Laws of Oleron, the salvage law applied by U.S. courts is in many ways simply U.S. general maritime law, cited
salvage cases, with their own separate and distinct elements and considerations.
from U.S. cases, with no real relationship to acquiescence or reciprocity by other nations. Although the Fourth Circuit in Titanic I noted that the results reached would have been
the same regardless of whether the case had been brought in France, England, Canada, or the United States, it did not cite any foreign case law to support this. n214 But
international trends now indicate that these issues are in dispute. MoSS, after all, is a project of the European Community, of which both France and England are members, and
American courts, motivated by traditional salvage notions of rewarding the salvor, are entirely at odds with bodies such as UNESCO, which regard historic wreck salvors as
it is not correct to consider the laws of salvage and finds as a part of jus
gentium when it is applied to historical shipwrecks. However, this does not mean that
U.S. courts should not continue to exercise jurisdiction over such wrecks, or that U.S. law is necessarily
inapplicable in these cases. Indeed, as U.S. salvage companies remain [*312] unfazed by the
challenges presented by either the ASA or international law, U.S. courts
tend to be the primary courts litigating such disputes. It may be that the sheer
magnitude of U.S. case law will outweigh international interests in public
property, in favor of private salvage companies. In order for their decisions to retain international respect,
however, U.S. courts should continue to allow themselves to be guided by values of
archaeological and historical preservation, as well as those of equity and enterprise .
"looters." n215 For this reason,
NOC Scenario
NOC Expanding Now
SOOEs expanding
Economist 12 – The Economist, (“New Masters of the Universe,” 1/21/12) //JGold
More generally, national energy companies are
no longer content just to sit at home and
pump the oil or gas. They are increasingly venturing abroad in order to lock up future
energy supplies or forming alliances with private-sector specialists to increase their
access to expertise and ideas. Gazprom has been buying up oil and gas companies across
eastern Europe and Asia. In 2008 it bought a 51% stake in Naftna Industrija Srbije, a Serbian energy
giant. Chinese oil companies have been striking deals across Africa: in 2006 Sinopec bought a
huge Angolan oil well for $692m. The multiplying alliances between national and international companies
are not always successful: BP, for example, will not rush into any future deals with Russia's Rosneft. But
they are plugging national energy companies into the global market for people and ideas
and closing the gap between the state-run and the private sector.
Commercial Exception Key
Commercial exception currently used to avoid arbitration for SOCs
Riblett, Associate International Arbitration at Freshfields Bruckhaus Deringer US LLP, ‘8 (Phillip, Fall,
“A Legal Regime for State-Owned Companied in the Modern Era” Journal of Transnational Law and
Policy, J. of Transnational Law & Policy,
http://www.law.fsu.edu/journals/transnational/vol18_1/riblett.pdf//bueno)
Plaintiffs are often not so fortunate as to have
secured an explicit waiver from the foreign state of immunity from jurisdiction. In many cases,
they simply have not had the opportunity. Moreover, the implicit waiver provision in Section 1605(a)(1) is construed very narrowly.166 Thus, plaintiffs find
themselves relegated to relying on another exception—most commonly the commercial activity exception.
2. The Commercial Activity Exception to Immunity from Jurisdiction
Section 1605(a)(2) provides an exception to immunity from jurisdiction in any case in which the action is based upon a commercial activity carried on in the United States by the
foreign state; or upon an act performed in the United States in connection with a commercial activity of the foreign state elsewhere; or upon an act outside the territory of the
United States in connection with a commercial activity of the foreign state elsewhere and that act causes a direct effect in the United States.167 The definition of “commercial
Establishing that an SOC has engaged in
commercial activity is straightforward; after all, most SOCs are inherently commercial. However, it is insufficient
for the purposes of establishing an exception simply to demonstrate that the foreign
state has engaged in commercial activity. Rather, the plaintiff must demonstrate a nexus
between the foreign state’s commercial acts, the plaintiff’s claim, and the United
States.168 Section 1605(a)(2) provides three prongs under which this exception to immunity applies; in each case the claim is “based upon” a particular type of act. The
activity” and the types of activities that are “commercial” are discussed in Section III.D.1 above.
court must focus on “those specific acts that form the basis of the suit.”169 A claim is based upon those facts which, if proven, would entitle the “plaintiff to relief under his
theory of the case.”170 As noted by the U.S. Court of Appeals for the Second Circuit, this suggests an extremely close connection between the act and the claim: What does “based
upon” mean? At a minimum, that language implies a causal relationship. . . . That is, it must be true that without the Act, there would be no judgments on which to sue. But this
is not enough. . . . “[B]ased upon” requires a degree of closeness between the acts giving rise to the cause of action and those needed to establish jurisdiction that is considerably
greater than common law causation requirements.171 Establishing the requisite nexus among the United States, the foreign state’s acts and the claims of the plaintiff is anything
but straightforward as an evidentiary matter. As noted in the quote directly above, this nexus is “considerably greater” than what would apply in the context of a typical
due to the difficulty of establishing an applicable
exception, the presumption of immunity is a significant advantage for SOCs. The first prong under
company.172 Thus, Section 1605(a)(2) is another example of how,
Section 1605(a)(2) applies where “the action is based upon a commercial activity carried on in the United States by the foreign state.”173 According to Section 1603(e), “[a]
‘commercial activity carried on in the United States by a foreign state’ means commercial activity carried on by such state and having substantial contact with the United
Saudi Arabia v. Nelson, decided by the U.S. Supreme Court in 1993, is the most prominent case
addressing the first prong of Section 1605(a)(2).175 Saudi Arabia, through its agent, had recruited Scott Nelson in the United
States.”174
States to work at a state-owned hospital in Saudi Arabia.176 Following an interview in Saudi Arabia, Nelson signed an employment contract and attended an orientation session
in the United States.177 Several months after moving to Saudi Arabia, Nelson began complaining repeatedly about safety defects in the hospital’s oxygen and nitrous lines.178
Six months after his first complaints, Nelson was detained by Saudi agents, who brutally tortured him.179 Nelson was then detained in a prison for over a month.180 Eventually,
following his return to the United States, Nelson filed suit against Saudi Arabia.181 While Saudi Arabia had recruited Nelson in the United States and Nelson had signed an
employment contract and engaged in training in the United States, the Supreme Court found that Nelson’s claim was not based upon those acts.182 Rather, his claim was based
upon the alleged torts committed in Saudi Arabia, which were not commercial acts, let alone commercial acts committed in the United States.183 Thus, the Court found that
This
case provides a clear example of the exacting manner in which courts demand that the
specific acts at issue were commercial acts that occurred in the United States.185 The second prong
Saudi Arabia was immune from suit because Nelson had failed to establish that his suit was “based upon a commercial activity” carried on in the United States.184
under Section 1605(a)(2) applies where “the action is based upon . . . an act performed in the United States in connection with a commercial activity of the foreign state
elsewhere.” 186 This seldom-applied prong “is ‘generally understood to apply to non-commercial acts in the United States that relate to commercial acts abroad.’”187 Of course,
the claim must be based upon the act performed in the United States—not the commercial act abroad.188 The final prong under Section 1605(a)(2) applies where “the action is
based upon . . . an act outside the territory of the United States in connection with a commercial activity of the foreign state elsewhere and that act causes a direct effect in the
United States.”189 That an American firm or individual suffers loss caused by a foreign act does not itself establish a “direct effect in the United States.”190 Indeed, the U.S.
Court of Appeals for the Second Cir- cuit has stated that “[i]f a loss to an American individual and firm resulting from a foreign tort were sufficient standing alone to satisfy the
direct effect requirement, the commercial activity exception would in large part eviscerate the FSIA’s provision of immunity for foreign states.”191 It is not necessary to establish
that the effect be substantial or foreseeable.192 Rather, the effect must simply be direct—that is, an effect that follows “as an immediate consequence of the defendant’s . . .
activity.”193 Thus, the Supreme Court held that Argentina’s rescheduling of bonds payable to accounts in New York—the place of performance for Argentina’s obligations—
caused a direct effect in the United States.194 The critical distinction in this case and others involving application of this prong is, according to the U.S. Court of Appeals for the
Ninth Circuit, that “something legally significant actually happened in the U.S.”195 Unlike the failure to fulfill a legal obligation within the United States, financial loss alone
The requirement
under the FSIA of a connection between the plaintiff’s cause of action and the
commercial acts of the foreign sovereign is a significant barrier to the exercise of
subject-matter jurisdiction in United States courts.”197
does not establish a direct effect.196 In sum, the case law establishes what the U.S. Court of Appeals for the Fifth Circuit has stated succinctly: “
NOCs use poor interpretation of commercial exception clause to avoid suits
Mutschink, JD Southern Methodist University, ’10 (Mark, Fall, “Facing the Future of Oil in U.S.
Courts: A Recommendation for Changing the Bremen Doctrine on Enforceability of Forum Selection
Clauses” SMU Law Review, 63 SMU L. Rev. 1343, lexis//bueno)
Once a defendant NOC establishes that it is entitled to
sovereign immunity under the FSIA, the burden shifts to the plaintiff to identify an
exception to immunity granted in§§1605-1607 of the statute. n152 There are several exceptions listed in the statute n153 with commercial activity the most commonly
B. The Commercial Activity Exception to Immunity
used. n154 The commercial activity exception to sovereign immunity applies where: [*1358] the action is based upon a commercial activity carried on in the United States by the
foreign state; or upon an act performed in the United States in connection with a commercial activity of the foreign state elsewhere; or upon an act outside the territory of the
The FSIA
defines commercial activity as "either a regular course of commercial conduct or a
particular commercial transaction or act." n156 Courts must reference the nature, not the purpose, of the activity when deciding whether
United States in connection with a commercial activity of the foreign state elsewhere and that act causes a direct effect in the United States. n155
it is commercial. n157 Even if the activity is engaged in for a sovereign purpose, such as buying military supplies, the commercial nature of the transaction is controlling. n158
where a foreign sovereign acts as a private player in the market rather than as a
regulator, it will not be granted immunity. n159 This argument may be helpful to
IOCs and service companies when trying to sue NOCs. This is because although the NOC's enabling statute
So,
may state that the purpose of the NOC is to develop the nation's hydrocarbons "for the public welfare and social interest," if the activity involved is simply a service contract to
drill a well at a particular site, then that activity is probably more like the actions in which a private landowner could engage. n160 Even if the plaintiff can establish that the
the commercial activity exception contains a jurisdictional
nexus that requires the conduct to either have occurred in the United States or have a
direct effect within the United States. n161 This jurisdictional nexus appears to be very similar to minimum contacts analyses in U.S. state
and federal courts. n162 This means that a plaintiff will have a burdensome task proving the facts needed to
establish jurisdiction over the NOC under this exception and that the NOC has a distinct
advantage over plaintiffs because of the blanket immunity provided to it. n163 Although this burden
seems harsh, it is consistent with the FSIA's purpose of making it difficult to sue foreign governments in U.S. courts. n164 So, the FSIA will almost
always apply to a NOC that raises it as a defense because NOCs are almost certainly
going to qualify as foreign states under the statute. This shifts the burden to the plaintiff
to show that one of the exceptions to immunity applies, and that burden is heavy. n165 In fact,
NOCs enjoy substantial protections from suit under the [*1359] FSIA, and that fact must temper the enforcement
complained-of activity is commercial in nature,
of forum selection clauses found in their contracts with private companies. n166
A2: Don’t Meet Commercial Exception
NOCs meet the FSIA definition of a state
Mutschink, JD Southern Methodist University, ’10 (Mark, Fall, “Facing the Future of Oil in U.S.
Courts: A Recommendation for Changing the Bremen Doctrine on Enforceability of Forum Selection
Clauses” SMU Law Review, 63 SMU L. Rev. 1343, lexis//bueno)
The FSIA n113 applies to virtually every suit brought
against a NOC in U.S. courts because NOCs are almost certainly "foreign states" under
the statute. n114 Therefore, any private company seeking to sue a NOC in the United States must
overcome the FSIA's protections to proceed to the merits of its claim. n115 This section outlines the
application of the FSIA to NOCs and the basic reasoning behind the statute as it applies to NOCs. [*1354] The FSIA is really a jurisdic-tional statute and does not create
any new cause of action. n116 It operates by conferring immunity to the jurisdiction of U.S. courts on all
foreign sovereigns. n117 Therefore, to determine whether jurisdiction over a NOC would exist, two questions must be answered in the affirmative: (1) is a NOC
a "foreign state" under the FSIA, and (2) does an exception to immunity apply? n118 A. NOCs Are "Foreign States" Under the FSIA NOCs are almost
certainly considered foreign states for purposes of the FSIA because they meet the
definition of an agency or instrumentality of a foreign state. The FSIA's definition of a foreign state is found in §
III. NOCs AND THE FOREIGN SOVEREIGN IMMUNITY ACT
1603(a)-(b): For purposes of [the FSIA] - (a) A "foreign state", except as used in section 1608 of this title, includes a political subdivision of a foreign state or an agency or
instrumentality of a foreign state as defined in subsection (b). (b) An "agency or instrumentality of a foreign state" means any entity - (1) which is a separate legal person,
corporate or otherwise, and (2) which is an organ of a foreign state or political subdivision thereof, or a majority of whose shares or other ownership interest is owned by a
foreign state or political subdivision thereof, and (3) which is neither a citizen of a State of the United States as defined in section 1332(c) and (e) of this title, nor created under
the laws of any third country. n119 NOCs are probably not political subdivisions of the state because that definition is understood to include governmental units, like state,
provincial, and city governments. n120 Therefore, for the FSIA to apply, NOCs must probably assert that they are an agency or instrumentality of a foreign state. n121 Under this
definition, most NOCs will probably satisfy the first and third prongs quite easily, with the only potential difficulty arising under the second prong. n122 Most NOCs should
satisfy the first requirement because they are organized as corporations or some other legal equivalent. n123
Saudi Aramco, Pemex, PDVSA,
and Petrobras are all organized as corporations. n124 The third requirement is also usually easily met because these corporations
are almost always formed under the laws of their respective [*1355] nations. n125 However, if a NOC owned a subsidiary formed under the laws of the United States or another
third country, that subsidiary would not be considered a foreign state under the FSIA. n126 The key to whether a NOC would be an agency or instrumentality is if it meets the
second requirement, which requires it to be "an organ of a foreign state or a political subdivision thereof, or [to have] a majority of [its] shares or other ownership interest ...
owned by a foreign state or political subdivision thereof." n127 There are two prongs within the second requirement - the ownership prong and the organ prong - either is
sufficient to satisfy the requirement. n128
Impact – Global Economy
Risks heg collapse and conflict w/ China
Bremmer 10 – runs Eurasia Group, a political risk consulting firm (Ian, “The Rise of State Capitalism
and the Future of the Free Market,” 5/14/10) //JGold
For the moment, many of the governments that practice state capitalism have profited
from it—both economically and politically. This might encourage some of them to rely for
future growth less on commercial ties with the United States and more on one another . If
so, this trend will have important consequences for America's global political influence
and the longer-term health of the U.S. economy. Does state capitalism doom the United
States and China to some form of direct conflict? Will it fundamentally undermine
globalization—the system that has lifted hundreds of millions out of poverty and into an emerging global
middle class? Is state capitalism sustainable? If politicians fail to keep their promises to consistently
generate jobs and long-term prosperity for fast-growing middle classes, will state capitalism go the way of
communism? Are we on the verge of a new global struggle—one that pits free-market
capitalists and state capitalists in a battle to win over countries that might still tip either
way? If so, who will win?¶ These are the questions that will determine the future of
international politics and the global economy over the next decade.
Impact – China Econ
SOE’s, specifically in the oil sector, kill the Chinese economy, and they’re
not going anywhere.
The Economist 12 (“State-Owned Enterprises Are Dragging Down China,” October 7, 2012,
Business Insider, http://www.businessinsider.com/state-owned-enterprises-are-dragging-down-china2012-10)
China’s state-owned enterprises are increasingly getting it into trouble--abroad and at home THIS week Barack Obama decided to
block a private Chinese company from buying a wind farm near an American military installation in Oregon. Regardless of the rights
and wrongs of the president’s decision--and it does come suspiciously close to the American election--it fits into a pattern that
should worry China’s businesspeople and rulers. In the West many
of China’s best companies are treated
with suspicion: Huawei, a telecoms giant, has been blocked from some markets in America, and a bid by CNOOC, a
state oil firm , to buy Canada’s Nexen has raised a storm. And it is not just the West. The leaders of Myanmar, hardly
democratic capitalists, have also turned against some Chinese firms (see "Relations with Myanmar: Less thunder out of China").
Behind this suspicion lies the perception--strengthened by the re-emergence of the
country’s vast state-owned enterprises (SOEs)--that China’s businesses are too close to
the Communist Party. Many in the regime believe the SOEs’ growth has helped China’s rise. The reverse is true: the
SOEs have cashed in on China’s progress. Far more importantly, they now look
sure to hinder it in the future. Retreat of the state In the 1990s, there was a logic behind promoting the SOEs.
Having seen post-Soviet state assets fall into the hands of oligarchs, China built up a select group of SOEs with cheap loans, land and
energy, so that the wealth would remain with the party. The best of them are world-class. The combined profits of Sinopec and China
Mobile in 2009 were greater than the profits of China’s 500 largest private firms together. Long-term and ambitious, the SOEs
increasingly attract the country’s best graduates. They contributed heavily to the investment splurge that rescued China’s economy
from the global financial crisis, contributing to a process critics call guojin mintui; "the state advances, the private sector retreats".
The party has encouraged the consolidation of SOEs in important industries, and
protected them from foreign competition (see "State-owned enterprises: The state advances"). In many
ways the state suffers as a result. An independent Chinese study has found that if all the government’s grants and
hidden subsidies were taken away, the SOEs would lose money. They pay hardly any dividends back to the government. Instead
much of the wealth has ended up enriching SOEs’ chiefs and political patrons, frequently sons and daughters of Communist Party
leaders, who are so powerful that they often outrank the heads of bodies supposed to regulate them. Money that could be much more
efficiently allocated is instead reinvested into SOEs, reinforcing their strength, and their bosses’ fortunes. These vested interests are
in turn some of the most strident opponents of political and economic reform, since they are the ones with the most to lose. The
SOEs’ power harms foreign firms in China, which are increasingly frozen out by
regulatory or market-access barriers. Abroad, the SOEs also cause problems--and not just suspicions in America.
Myanmar’s leaders have tired of the plundering of their country by unaccountable Chinese SOEs--one reason for their recent
decision to open to the West. Most important of all, SOEs damage small and medium-sized Chinese enterprises, which are starved of
money. This
deprives China of the bamboo capitalists whose drive and innovation is needed
more than ever now that economic growth is slowing. The road China has taken from a
centrally planned economy has been brave. The former prime minister, Zhu Rongji, in the late 1990s, took a
sledgehammer to the weakest SOEs. But, more than a decade later, it is worrying to see those
that survived tightening their grip. The party needs to take on the vested interests, start to privatise SOEs,
open their sectors to competition and allow the private sector once again to help pull China forward. Some reformers in China know
this must happen. In April the prime minister, Wen Jiabao, gave a speech attacking the monopoly power of big state banks. But he is
stepping down, and it is not clear who might champion the cause in the new leadership that takes office in November. Hardliners
fear that the survival of the Communist Party is at stake. But so is the economic miracle of the past 30 years.
Chinese SOE’s structurally devastate the Chinese economy – kills investor
confidence and increases wealth gap – prefer consensus of leading
economists.
WCT 13 (Want China Times, citing leading economists at the Chinese Academy of Social Sciences,
“State-owned enterprises an obstacle to China's economic reforms,” January 2, 2013,
http://www.wantchinatimes.com/news-subclass-cnt.aspx?id=20130102000075&cid=1501)
The rapid growth of Chinese state-owned enterprises over the last 10 years has made them
incredibly powerful institutions which could present obstacles to the country's president-inwaiting Xi Jinping and future premier Li Keqiang in their efforts reform the country's struggling private sector, reports
our sister paper Want Daily. Under the leadership of outgoing president Hu Jintao and premier Wen Jiabao, the past decade has
been viewed as a golden era of economic growth for the world's now number two economy, with real GDP rising by an average of
around 10% annually. China's overall advances have, however, come at the expense of some of its people. While
stateowned enterprises have thrived, income distribution between urban and rural areas
continues to worsen and has worsened and the overall wealth gap has widened further.
Xi and Li are believed to consider the wealth gap a top-tier issue and will seek to reverse the trend with substantial reforms once they
take the reins from Hu and Wen next March. However, public
enterprises with their own interests are
likely to oppose any policies aimed at loosening financing restrictions on private
enterprises or opening state-owned companies to private investment, essentially any measures
aimed at leveling the playing field and challenging the privileged position of SOEs. The 2012 Blue Book on China's
Economy edited by leading economists at the Chinese Academy of Social
Sciences released earlier this month reveals that the country's salaries as a share of
GDP fell from 50.7% in 2004 to 44.9% in 2011. For a contrast, in the US, wages as a proportion of GDP is
currently around 70%. China's SOEs also do not issue dividends or issue extremely low dividends to shareholders compared to listed
American companies. According to research from Tsinghua University in Beijing, the average dividend rate paid by Chinese firms is
around 18% while the global average stands at around 27%. When
state-owned PetroChina (CNPC), the
country's biggest oil producer, listed on both the Shanghai and Hong Kong stock
exchanges in 2010, the value of dividends it paid to mainland investors was just a
tenth of what investors in Hong Kong received. One of the main reasons for the
disparity stems from the performance measures by which of local Chinese officials are
judged. Job performance is linked to their contributions to GDP, and managers of state-owned enterprises are judged on their
contributions to revenue as opposed to profit. Accordingly, state-owned companies in China tend to be more
focused on reinvesting profits rather than rewarding investors. the nation's rate of
investment as a percentage of GDP is nearly 50%, compared to only 15% for the US, 20% for Japan and
around 10% for Taiwan. Meanwhile, the country's consumption rate has grown by a mere 1%
over the last decade, from 32% to 33% of GDP. When state enterprises struggle, company funds are
reallocated to the real estate sector in the hope of boosting income through appreciation in property values. This has caused housing
prices in China to skyrocket and has forced regular workers to move further away from the city in search of affordable homes. The
desire of company officials to maintain living standards has only perpetuated China's
corruption problem. Many executives at SOEs believe that as long as wealth is not pocketed by one person but is
shared among his peers at the company then anti-corruption authorities will not target them. In February, when the Development
Research Center of China's State Council and the World Bank suggested making official assets public and opening up public sector
monopolies to private investment, the proposal was strongly opposed by the vast majority of government departments. Nationalism
is regarded as another significant factor behind the expanding power of SOEs as China's citizens take pride in the size and
performance of domestic companies, especially if they make Fortune's Global 500 list. A prime example stems from the ongoing
territorial dispute between China and Japan over the Diaoyutai (Diaoyu in China and Senkaku in Japan) islands in the East China
Sea. When Japanese media ridiculed the strength of China's navy there were calls for China to invest billions of additional dollars
into state-owned military enterprises to develop more aircraft carriers and stealth fighter jets.
Privatization in China is essential to solve the Chinese economy and global
conflict.
Dorn 2k (James A., China specialist at the Cato Institute and coeditor of “China’s Future: Constructive
Partner or Emerging Threat?,” “State-Owned Enterprises Continue to Hinder Chinese Growth,” CATO
Institute, September 21, 2000, http://www.cato.org/publications/commentary/stateowned-enterprisescontinue-hinder-chinese-growth)
In January, Chinese Deputy Prime Minister Wu Bangguo said that whether or not China gets into the World Trade Organization,
China’s policy would be “to reform and build a market economy.” Now that China is assured of entering the WTO, the
hard
work of transforming China’s socialist market economy into a free-market system must
begin. China’s path to a full-fledged market economy will be unique. But, at the end of the day, if it is to
develop real - rather than pseudo - capital markets, privatization is essential , which means a legal
structure that protects private property and freedom of contract. As Zhao Zhijun, a member of the Economic Research Institute of
the Chinese Academy of Social Sciences, said, what China needs is to “create laws that protect the rights, interests and property of
the private sector.” China has made significant progress since 1978 when it initiated its long march toward a market economy. Per
capita income has increased more than fourfold, and millions of people have moved from the dying state sector to the vibrant private
sector. But serious problems remain, especially in the financial services industry, where foreign competition has been narrowly
limited. The four large state banks continue to monopolize the allocation of scarce capital and restrict the flow of funds going to the
nonstate sector. Political factors, not profitability, largely determine who gets the available funds. Indeed, state-owned enterprises
receive more than two-thirds of the funds but account for less than one-third of industrial output value. The inefficiency of SOEs has
created a nightmare for state-owned banks, which now hold nonperforming loans that total as much as 25 percent or more of all
loans outstanding. Recapitalizing the banks is not a panacea. Without
institutional change and a hard budget
constraint, the politicization of investment decision-making will continue. Cheap credit will flow to
favored SOEs that will waste scarce capital on low quality “pet” projects that have little net value to consumers. Breaking up
the large state banks might help to increase efficiency but not unless private owners, who can
specialize in risk taking and be held accountable for use of resources, take the place of politically motivated
state managers whose first loyalty is to the Chinese Communist Party. Making asset values fully dependent on market forces
and letting interest rates be freely determined would remove the last vestige of central planning and depoliticize economic life. Those
measures would help end the rampant corruption that now is ubiquitous throughout
China and lay a sound basis for future economic growth. In their heart of hearts, the party elders
must know that privatization is the only logical way to change the incentives and the behavior of inefficient SOEs. But they also
recognize that privatization would mean the end of the CCP as they know it. Thus, many party members are reluctant to sever their
ties to the old economy and jump into the sea of private enterprise. Yet, the new economy and global competition may force them do
just that. It is not difficult to forecast that, with China’s entry to the WTO, foreign competition will spur domestic competition and
foster growth of the nonstate sector; freedom of choice will expand; alternatives to state provision will give people greater
independence; and, as
China becomes more open to the outside world and more liberal, the chances
for peaceful interaction will increase and conflicts diminish . A modern economy
requires the free flow of goods, services and ideas. China will have to allow greater freedom of expression
and tolerate differences of opinion if it wants to be on the leading edge of the global economy. Pretending to create capital markets
by debt-for-equity swaps, in which most of the shares are owned by the state, will not fool international investors. If
China
wants to join the new global economy, it must be more open to information flows, allow
thoroughgoing privatization, make the renminbi fully convertible and allow greater foreign competition. Those
reforms cannot be accomplished overnight, to be sure, but they must begin if China is to take the next step toward freedom and
prosperity.
Genocide Scenario
FSIA Key
Current FSIA justifies sovereign committing atrocities – empirics prove
Mofidi 99 - Law Clerk, the Honorable Robert J. Kapelke, Colorado Court of Appeals, Denver,
Colorado; J.D. 1999, University of Denver College of Law; 2000 Ph.D. candidate, University of Denver
Graduate School of International Studies (M., “The Foreign Sovereign Immunities Act and the
‘Commercial Activity’ Exception: The Gulf Between Theory and Practice”,5 J. Int'l Legal Stud. 95 1999,
hein online)//kw
No case better reflects the tension between the broad and narrow¶ constructions of
commercial activity than Saudi Arabia v. Nelson,87 the¶ most recent and comprehensive
elaboration on the FSIA by the Supreme¶ Court. In that case, agents of Saudi Arabia recruited and hired
Nelson in¶ the United States to serve as a troubleshooter and monitor the safety of¶ facilities and equipment at
the King Faisal Specialist Hospital in Saudi¶ Arabia, a government-owned and -operated
hospital." Nelson alleged that while performing his duties at the hospital, he reported safety violations89 to¶ a Saudi Arabian
investigation commission, and that in retaliation, Saudi¶ officials imprisoned him for thirtynine days and "shackled, tortured, and¶ bea[t]" him. 90¶ The Saudi Government claimed that
Nelson had been detained for¶ violating Saudi Arabian law by falsely asserting that he had graduated from¶ the Massachusetts
Institute of Technology and by presenting a forged¶ diploma to substantiate his claim.91 The Court held that "the conduct boils ¶ down to abuse of the power of its police by the Saudi Government, and¶ however
a foreign state's¶ exercise of the power of its police has long been
understood for purposes of¶ the restrictive theory as peculiarly sovereign in nature."92¶ There
was no consensus among the Justices as to the scope of the¶ commercial activity exception. According to the Court, classifying official¶ police
action as "commercial" would allow the commercial activity¶ exception to "swallow the
rule of foreign sovereign immunity." 93 To the¶ argument that the police action was commercial because it occurred in¶ retaliation for whistle-blowing, the Court
responded that the FSIA rendered - - 94 purpose irrelevant to the jurisdictional analysis.¶ Concurring, Justice White agreed that immunity applied,
but argued that the actions of the police should qualify as commercial activity.95 First,¶ he reasoned
that running a hospital was clearly commercial .96 Second,¶ because commercial parties sometimes retaliate
against whistle-blowing,¶ retaliation should constitute a manner "in which private parties at times do¶ engage in commerce." 97 White concluded, however, that
jurisdiction¶ should fail because the activity was not "carried on in the United States," as¶
the FSIA requires.98 Although White's reasoning reached the same conclusion as that of¶ the majority, he believed that the majority wrongly fixated on police¶ intervention.99 He
monstrous such abuse undoubtedly may be,
ventured that the majority's reasoning would compel¶ jurisdiction if the retaliation had involved hired thugs rather than ¶ policemen, for then the conduct would not have been a foreign state's¶ police action.o
the case in my mind turns on whether the¶ sovereign is acting in a commercial capacity, not on
White noted: "
whether it resorts to¶ thugs or government officers to carry on its business."'o' Though insisting¶ his approach would not involve inquiry into purpose,102 White's assertion is¶ difficult to reconcile with his focus
on retaliation.103¶ In his dissent, Justice Stevens bifurcated the jurisdictional analysis,¶ first examining whether the action was based on commercial activity, and¶ second, determining whether that activity
created substantial contact with the United States.'0 4 By de-coupling the analysis into commercial activity¶ and substantial contacts inquiries, Stevens broadened the statutory test.io0 ¶ On the first question,
Stevens agreed with White that the suit was based¶ upon commercial activity.'0 6 On the second question, however, Stevens¶ determined that either operating the hospital or hiring Nelson established¶ sufficient
if a private person had performed the same acts,
"jurisdiction¶ would be upheld. And that, of course, should be a touchstone of our¶
inquiry." 0
jurisdictional contacts with the United States.'0¶ o Finally, Stevens¶ reasoned that
Human rights abuses in SQ – Sovereign Immunity shifts blame
Alford 8- Associate Professor of Law, Pepperdine University School of Law, Malibu, California. L.L.M,
University of Edinburgh, 1992; J.D., New York University, 1991; (Roger P., “Arbitrating Human Rights”,
January 2008, 83 Notre Dame Law Review 2) //kw
If human rights victims had their way, a viable judicial mechanism in which sovereigns
could genuinely be held accountable would already exist. Sovereign accountability might be pursued through liti- gation in domestic or
foreign courts, or before international tribunals. But for victims in many countries, domestic litigation against the sov- ereign for
human rights offenses is simply not available. And absent a treaty expressly providing a mechanism for resolving human rights claims
before international tribunals, they have no opportunity to pur- sue claims in international human rights tribunals. The result is that many claims for human rights abuses
the United States has
become the preferred venue for pursuing international human rights claims.4 The reasons
have been pursued in foreign courts, particularly in countries that are more amenable to such claims. For good or for ill,
for this
are legion, but they include liberal pretrial discovery; broad rules on personal jurisdiction, including "tag" and "doing business" jurisdiction; jury trials in civil litigation; higher
damage awards, including pumtIve damages; class action litigation; contingent fee arrangements with counsel; the absence of "loser pay" rules for the unsuccessful party; and
statutory protections for international law vio- lations. As a result of these systemic advantages, victims of human rights abuses have pursued and occasionally succeeded in
claims against individuals responsible for grave human rights violations.5 While the percentage of successful claims is quite small, the opportu- nity to pursue human rights
claims against individual perpetrators such as Americo Peiia6 and Radovan KaradziC has led to a cottage industry of international human rights litigation in the United States.
But for all these systemic advantages, perpetrator responsibility remains elusive. One of the principal problems with litigation against individual perpetrators is that, with very
another common approach that
has been employed is for human rights victims to pursue claims directly against
sovereign entities. But when human rights victims have pursued claims against
sovereigns, they have been met with formidable defenses, not the least of which is the claim of
sovereign immunity.9 Under well-developed United States law, sovereigns typically enjoy foreign
sovereign immunity for their sovereign acts,10 unless their conduct falls within a narrow set of exceptions outlined in the Foreign
rare exception,8 these low- level offenders are not subject to personal jurisdiction and are gener- ally judgment proof. So
Sovereign Immunities Act (FSIA).I1 Unremarkably, those exceptions are unhelpful to human rights victims, as they were not designed with human rights offenses in mind.
In order to pursue a claim against a sovereign, one must establish that the sovereign
com- mitted acts which justify the removal of immunity, such as engaging in
commercial activity, waiving immunity, expropriating property, or committing a noncommercial tort within the United States.I2 Propo- nents have tried to
fit the square peg of human rights claims into the round holes of the FSIA exceptions, but with very limited success.13 Such litigation has led to convoluted arguments, such as
contentions that the commission of torture is a commercial activity,14 or that offenses occurring inside an American foreign embassy are torts com- mitted within the United
Unable to fit human rights
claims under the existing FSIA excep- tions, proponents also have made numerous
attempts to amend the FSIA to include a human rights exception.I7 Not surprisingly, those attempts have uniformly failed. The
concern, of course, is if the United States were to opt for such an exception for grave human rights
violations, other countries might reciprocate, opening the door for national courts to be
the final arbiter of the global conduct of other nations, including our own. Such reciprocity concerns
do not suggest that the United States fears accountability for human rights violations,
but rather that it fears the demise of foreign sovereign immunity's traditional distinction between
immunity for public acts and accountability for private or commercial acts. An exception for human
States,I5 or that the commission of serious human rights offenses constitutes an implied waiver of immunity.16
rights violations would reflect a dramatic normative shift away from traditional understandings of immunity for public acts, a shift arguably no less significant than the move
from absolute to restrictive immunity.18 Af:, Anne-Marie Slaughter and David Bosco put it: [T]he case against further congressional encroachments on sover- eign immunity
is compelling. By weakening its sovereign-immunity laws, the United States may put its own assets and interests abroad at risk. After all, sovereign immunity is meant to be a
reciprocal arrangement. With its worldwide reach, the United States would be particularly vulnerable should other countries imitate Congress and permit suits against the
U.S. government abroad.19 A human rights exception to the FSIA would shift the focus in addressing human rights abuses away from the executive branch and toward the
judicial branch, something the United States consistently resists in the various statements of interest that it has filed opposing human rights litigation that casts judgment on a
foreign sovereign's conduct abroad.20
States can get away with murder
Gibney and Roxstrom 12- Belk Distinguished Professor at the University of North CarolinaAsheville; PhD candidate at the University of Bergen School of Law (Mark and Erik, “What a Pity!
Sovereign Immunity, State Responsibility, and the Diminution of Accountability Under International
Human Rights Law”, Journal of Human Rights, taylor & francis)//kw
Although individual accountability for violating human rights standards has been honored¶ more in theory than in actual practice,
its place in international law is secure. An excellent¶ example of the centrality of this principle is the Torture Convention under
which all¶ state parties obligate themselves to either prosecute or to extradite any torturers who are¶ within its territorial borders;
and what does not matter is if the torture had been carried¶ out in that state or whether either the victim or the perpetrator were
nationals of that¶ state.11¶ State responsibility, on the other hand, has a much more ambiguous status under¶ international law
(Nollkaemper 2003). Thus, although
there is a universal duty to prosecute¶ individual torturers,
apparently no state party has an obligation of any kind to hold the¶ offending state
accountable.12 Moreover, we know with some degree of certainty that if a¶ victim sought to do so in a
domestic proceeding, in all likelihood, this case would quickly¶ be dismissed on the basis of the
doctrine of sovereign immunity. And what we also know¶ from Al-Adsani is that a state that provides
sovereign immunity protection to an offending¶ state will itself not be in violation of
international human rights standards for doing so. The¶ rationale for this, as we have seen, is that there is no
“causal connection” between the state¶ that grants sovereign immunity protection and
the offending state.
Impact – Human Rights
Decreases human rights abuses
Alford 8 – Associate Professor of Law, Pepperdine University School of Law, Malibu, California.
L.L.M, University of Edinburgh, 1992; J.D., New York University, 1991; (Roger P., “Arbitrating Human
Rights”, January 2008, 83 Notre Dame Law Review 2)//ER
heretofore human rights abuse has been a relatively
cost-free enterprise [*528] for perpetrators, particularly sovereigns. Or at a minimum, one could say that certain sovereigns have
calculated that the benefits of abuse often outweigh the costs. But with corporate liability that equation changes
dramatically. To use Guido Calabresi's scheme of cost avoidance, monetary incentives are placed on corporations to
change their conduct so as to reduce the number and severity of human rights violations.
What is particularly important about this paradigm shift is that
n109 But corporations may not be in the best position to modify their conduct so as to prevent these injuries from occurring in the future. It may be that sovereigns can best
. By assigning the costs to the
corporation, it is in a position to induce the sovereign to change its behavior. n110 And
by imposing a cost on corporations that aid and abet sovereign abuse, those
corporations will become cost avoiders. One logical way to avoid costs is to transfer some of the costs to the cheapest cost avoider,
avoid certain injuries, despite the fact that they are relieved of the direct costs of liability for those injuries
thereby enhancing the likelihood that the sovereign will decide against inflicting future injury. Holding corporations liable and then arbitrating who pays is a mechanism of
By imposing and spreading
costs to the secondary and primary perpetrators, greater fairness between the
malfeasors is achieved and deterrence from human rights abuse is enhanced.
Contractual arbitration between the corporation and the sovereign over who pays
transfers costs imposed on the corporation and creates shared incentives to implement
and enforce human rights obligations. n111
imposing costs and then spreading the costs, resulting in the corporation and the sovereign becoming cost avoiders.
A broad interpretation of the sovereign immunities increases human rights
abuses
Alford 8 – Associate Professor of Law, Pepperdine University School of Law, Malibu, California.
L.L.M, University of Edinburgh, 1992; J.D., New York University, 1991; (Roger P., “Arbitrating Human
Rights”, January 2008, 83 Notre Dame Law Review 2)//ER
As the Caspian Sea pipeline project illustrates, foreign
sovereign immunity is a right that
sovereigns have long been willing to forego in doing business with multinational
corporations. When lucrative contractual opportunities are presented and contracting
parties demand it, sovereign entities will relent and afford their business partners with
an effective dispute resolution procedure. Foreign investment agreements have typically
incorporated arbitration agreements and waiver of immunity clauses to guarantee that foreign investors
will have legal recourse in the event of sovereign noncompliance. As discussed above, the demands of
international business have established a [*540] robust and effective procedure for resolving such
international disputes. The novelty of the current movement is to expand the subject matter to which
contractual obligations apply. By imposing social and environmental covenants in contracts
with sovereign entities, corporations stand in the uniquely powerful position of
imposing human rights obligations on sovereigns and having those commitments
enforced through arbitration. One of the most promising tools for the promotion of
human rights is to leverage the power of corporations. Based on current trends, one can
anticipate that many corporations will increasingly include core human rights and environmental
standards as contractual covenants in their international agreements. These contracts will also
include grievance procedures, including arbitration, as a common mechanism for
dispute resolution. Serious noncompliance with substantive contractual obligations will
trigger invocation of the dispute resolution provisions. Thus, by contracting for human
rights as a substantive obligation and contracting for arbitration as a procedural
guarantee, corporations throughout the globe can establish a firm basis for the
promotion of human rights within their spheres of influence. International agreements
that incorporate human rights commitments crystallize incentives and create explicit
legal authority in private parties to monitor, enforce, and create human rights
standards, thereby increasing pressure for compliance by contract.
Broad foreign sovereign immunities act allows for human rights abuses –
iran proves
Ling ’12 (Justin, “Immunity or impunity?” http://www.nationalmagazine.ca/Articles/March-2014WEB/Immunity-or-impunity.aspx?lang=FR)//ER
The justices of the Supreme Court of Canada heard an unusual access-to-justice case this week – one that
also touches upon the accountability of those who commit human rights abuses. In The Estate of Zahra
Kazemi et al. v. Iran, et al, the top court will have to decide whether or not Iran should be
held liable under Canadian law for torture and murder committed on their soil. The
origins of the case date back to 2003, when Iran-Canadian journalist Zahra Kazemi was
tortured to death in an Iranian prison. Her son, Stephan Hashemi, filed a lawsuit three years later
against the state and the officials who he says are responsible for her death. Hashemi asked for $17
million in damages, on behalf of both himself and the estate of his late mother, from three Iranians —
Saeed Mortazayj, Chief Public Prosecutor; Mohammed Bakhshi, Deputy Chief of Intelligence for the
prison, in which Kazemi died, and Ayatollah Ali Khamenei, the Supreme Leader of Iran. Hashemi alleges
that he suffered psychological suffering at the hands of those three men — the man who pressed the
trumped-up charges, the man who interrogated and allegedly beat, raped and killed his mother, and the
man who runs the state — and that Canada, as a signatory to the UN Convention Against Torture, has a
duty to act. Lawyers for the plaintiff, Irving Mitchell Kalichman and Mathieu Bouchard, partners at
Montreal-based Irving Mitchell Kalichman, had a narrow legal case to make. Under the State
Immunity Act, foreign states are immune from prosecution in Canadian courts, civil or
criminal, unless those bringing the case forward can squeeze themselves into one of the
exceptions set out in the act — commercial activity, international shipping, maritime law,
terrorism, or torture and murder. Counsel for Iran quickly moved to dismiss the case. To save
it, Johnson and Bouchard tried to convince Quebec Superior Court Justice Robert Mongeon of three
things: that the estate of Kazemi should be given standing to pursue justice for her murder; that
Hashemi’s psychological pain and suffering endured in Canada constitutes an exception under the Act;
and, notwithstanding both of those things, that the State Immunity Act acts as an unconstitutional
limitation on the right to a fair trial as laid out in the Charter of Rights and Freedoms, and the Canadian
Bill of Rights Mongeon accepted that psychological pain constituted an exception under the act, and
allowed Hashemi’s case to go forward. The Quebec Court of Appeal wasn’t so generous. It ruled in favour
of Iran’s motion to dismiss and quashed the whole of Hashemi’s claim. On Tuesday, the two lawyers made
the case that the Supreme Court must cast aside the State Immunity Act and let the case go forward.
Hashemi’s lawyers, and a slew of interveners — including Amnesty International, the Canadian Centre for
International Justice, and international anti-torture organization REDRESS — made the case that
psychological suffering, in this case, ought to qualify for the exempt under section 6 of the State Immunity
Act: “A foreign state is not immune from the jurisdiction of a court in any proceedings that relate to any
death or personal or bodily injury.” Justice Rosalie Abella, however, interjected to suggest that Hashemi
may be trying to claim a “derivative right,” given that the torture was not directed at him, and came as a
consequence of his mother’s imprisonment. But if the court does, in fact, find that Hashemi’s Section 7
rights under the Charter were infringed by the actions of those Iranian officials, Johnson and Bouchard
say the courts must be pulled into acting. “Canadian courts constitute not merely a forum of necessity in
this case, but indeed a forum of last resort for the Appellants,” they argued. And if the courts cannot
hear the case, they figure, their client has effectively lost the right to a “fair hearing in
accordance with the principles of fundamental justice,” as envisioned in the Bill of Rights. “We
raise the right to a remedy for torture,” argued Johnson before the Justices. Indeed, the UN Convention
Against Torture — which Canada ratified in 1987 — reads that “each State Party shall take such measures
as may be necessary to establish its jurisdiction over the offences…when the alleged offender is a national
of that State,” and further that “each State Party shall ensure in its legal system that the
victim of an act of torture obtains redress and has an enforceable right to fair and
adequate compensation, including the means for as full rehabilitation as possible. In the
event of the death of the victim as a result of an act of torture, his dependents shall be
entitled to compensation.” The plaintiffs note that the UN committee tasked with ensuring that the
convention is enforce found in 2012 that “granting state immunity for torture is in direct conflict with this
obligation.” To that end, Bouchard told the court, torture, like terrorism, is “unique” and should not be
shielded by state immunity. The Canadian Bar Association also intervened in the case to argue that the
committee’s findings, which called upon states to give victims of torture an avenue for redress, should
inform the court’s decision. Bouchard told reporters outside the courtroom that giving the courts more
leeway to define the Act might not be so unprecedented. “In state immunity, it’s not the lawmakers who’ve
made the changes. In state immunity traditionally, it’s courts who first recognize the immunity, that
created the immunity, and it’s the courts in different countries that created the exceptions,” Bouchard
says. “There are only 10 countries around the world that have enacted the State
Immunity Act, every other country around the world relies on their court to define the
boundaries on state immunity, on a case-by-case basis. So Canada is in a very
exceptional situation here, and we shouldn’t be afraid to create new exceptions when
that was always the province of the court.” John Terry, counsel for the Canadian Centre for
International Justice and a partner at Torys LLP, made the case that the court could find room to allow
the case to proceed without toying with the constitutionality of the State Immunity Act. “There is room,
without going to the Charter […] for the court to make a decision,” he said, making the case that while the
act applies to the actions of a nation, it need not necessarily apply to the illegal actions of its employees.
“You may find that the state is immune, here, but that we can proceed against these officials,” he told the
court. “The torture and killing of Zahra Kazemi does not fall within the official duties of
these officials. “Acts that violate jus cogens cannot be official acts.” The Attorney General flatly
contradicted that, in intervening to protect the constitutionality of the act, expressly arguing that
expanding the statutory exceptions would run contrary to the intentions of Parliament. “There is no
obligation in international law to provide victims of torture with a civil remedy for acts
of torture committed abroad,” they argue. During the three-and-a-half hour hearing, both sides
trotted out a slew of international case law that sent conflicting messages on the intersection between the
jurisprudence of state immunity and international law on torture and redress. One Supreme Court of
Canada case did continue to pop up, however: Schreiber v. Canada, wherein businessman Karlheinz
Schreiber attempted to stay an extradition order back to his native Germany, where he was wanted on
fraud charges. Justice Louis Lebel, writing for the unanimous court, had found that while Schreiber’s
motion was without merit, there remains real exceptions to the act — especially in the French version. “It
signals the presence of a legislative intent to create an exception to state immunity which would be
restricted to a class of claims arising out of a physical breach of personal integrity, consistent with the
Quebec civil law term préjudice corporel. This type of breach could conceivably cover an overlapping area
between physical harm and mental injury, such as nervous stress,” Lebel wrote. However the court rules,
it has vast implications, and not just for the interpretation of the State Immunity Act. If the justices do
rule in favour of Hashemi, the monetary costs will not be a symbolic sum — given that there are millions
of dollars in Iranian assets frozen in Canada, some of which have already been tapped by victims of
terrorism seeking compensation.
Impact – Genocide
FSIA justifies intervention and genocide
Gibney and Roxstrom 12- Belk Distinguished Professor at the University of North CarolinaAsheville; PhD candidate at the University of Bergen School of Law (Mark and Erik, “What a Pity!
Sovereign Immunity, State Responsibility, and the Diminution of Accountability Under International
Human Rights Law”, Journal of Human Rights, taylor & francis)//kw
Human rights are (universally) declared to be universal, but there is not much evidence¶ of this in
actual practice, best evidenced by the sizable number of people in the world¶ who currently are being denied at least some form of human rights protection. Yet, there¶ is another way in
which human rights are not universal and it relates to how we conceptualize¶ human rights in the first place. As a general (and perhaps even universal) rule,¶ states see their human
rights obligations as extending no further than their own territorial¶ borders.15 Under this approach, a
state is obligated to follow international human¶ standards in its domestic operations (at least in theory). However, these same standards¶ are seen as being
inapplicable for those things that occur outside a state’s own territorial¶ borders.¶ One
manifestation of this double standard is in the practice of granting sovereign¶ immunity
to a country that carries out gross and systematic human rights violations. As we¶ have seen, the rationale
that has been used is that there is no “causal connection” between¶ the state granting sovereign immunity
protection and the state that carries out these human¶ rights violations. Yet, what this ignores is the manner in
¶
which sovereign immunity makes¶ this very connection.¶ But this is just part of bigger problem involving the issue of state responsibility. In¶ the domestic sphere, there is almost never any question of when a
, state responsibility gets much fuzzier
when a state acts outside its own borders, or else it¶ acts domestically, but the negative human rights
consequences are felt by people in other¶ lands. As we have seen here, especially in our discussion of Bosnia v. Serbia, absent some¶ kind
of direct action such as a state sending its troops into another country,16 it will be ¶ virtually
impossible to hold a state responsible in any manner for human rights violations¶ that
occur in some other country.¶ Because of this, states have been given license to “do” things in
other countries that¶ they are prohibited from doing within their own domestic realm. More
concretely, this¶ means that states can arm and equip and be allied with even the most murderous
regimes, and yet unless this state has exercised near-complete control, it will not bear
any responsibility¶ for the horrible things this other state does—even if it does them with
these¶ weapons. Rather than constituting the law on state responsibility, one is tempted to describe¶ this as the law on state (non)responsibility instead. However, what remains unclear¶ is
state is “responsible,”¶ although there can also be issues with regard to domestic sovereign immunity. However ¶
whether the fault lies with the (Draft) Articles on State Responsibility, or with the International ¶ Court of Justice’s interpretation of these Articles—or, perhaps more likely, with¶ both.
Broad sovereign immunity causes genocide – Chinese company
Kelly ’11 (Michael, Professor of Law, Associate Dean for Faculty Research & International Programs,
Creighton University School of Law. B.A., J.D. Indiana University; LL.M. Georgetown University.
Professor Kelly is President of the U.S. National Chapter of L'Association Internationale de Droit Penal.
This is a case study drawn from a larger paper presented at the fourth Biennial Four Societies Conference
(2010) in Japan, “Ending Corporate Impunity for Genocide: The Case Against China's State-Owned
Petroleum Company in Sudan,” Oregon Law Review, 2011, Lexis)//ER
how can it be made accountable for those actions? It
cannot. n46 China [*426] is a sovereign state--and a veto-wielding member of the U.N. Security Council. It enjoys immunity from prosecution.
So if China is an essential culprit driving the genocide in Darfur,
This holds true for the PLA as a component of the government. The only way to pierce the PLA's veil would be to find it a criminal organization as the International Military
although CNPC is a corporation, the
prospects for prosecuting it would be dim. CNPC is a state-owned company, which
raises questions of sovereign immunity. It spun off most of its liabilities to a subsidiary, PetroChina, but Beijing controls over eighty-six
Tribunal (IMT) at Nuremberg did with respect to the SS or the Gestapo. n47 Which leaves CNPC. And,
percent of its shares. n48 As such, it can make a colorable argument for sovereign immunity--although that would not likely stand in jurisdictions that recognize the market-
CNPC can negotiate variable degrees of immunity from
prosecution in the relevant states where it does business. This is a common practice of large foreign corporations and
participant exception to immunity. Alternatively,
But when CNPC's economic
enterprise and legal impunity is set against personal stories of genocide survivors, the
injustice becomes starkly apparent: Suad Ahmed[is] a 25-year-old mother of two from Darfur. She lives ... in the Goz Amir refugee camp, and
often a condition of doing business in a developing country with immature, and often corrupt, justice systems.
last month she was collecting firewood with her ... little sister, Halima, when a band of janjaweed ambushed them. The janjaweed regularly attack women and girls - part of a
Sudanese policy of rape to terrorize and drive away black African tribes - and Ms. Suad knew how brutal the attacks are. A 12-year-old neighbor girl had been kidnapped by the
janjaweed and gang-raped for a week; the girl's legs were pulled so far apart that she is now crippled. But Ms. Suad's thoughts were only for her sister, who is just 10. "You are a
virgin, and you must escape," she told her. "Run! I'll let myself be captured, but you must run and escape." The local culture is such that if the little girl were raped, she might
never be able to marry. So Ms. Suad made herself a decoy [*427] and allowed herself to be caught, while her sister escaped back to the camp. Ms. Suad ... was five months
pregnant... . ... The janjaweed beat Ms. Suad, and seven of them gang-raped her despite her pregnancy. "You black people have no land," she recalls them telling her. "This land
is not for you." People from the camp found Ms. Suad in the hills that evening, too injured to walk, and carried her back. Ms. Suad said she didn't seek medical treatment,
because she wanted to keep the rape as much of a secret as possible and didn't even tell her husband, although he eventually found out along with a few others. He accepted that
Suad Ahmed not deserve justice because she is a poor black African woman? She is Sudanese, run off her
land by government-backed forces so the land can be exploited. Such refugees are kept
from returning by marauding militias who murder and terrorize them. If this is done so
the genocidal government in Khartoum can make millions from oil concessions, then
shouldn't the petroleum companies providing the economic incentives for this cruelty be
held responsible? Like most corporations, CNPC shaves off assets and liabilities on a regular basis--the motivation for doing so is often a mystery, but possibly
it was not her fault. n49 Does
it is to avoid some responsibility or another. As noted earlier, CNPC spun off most of its assets and liabilities to a subsidiary dubbed PetroChina in 1999. This company was
designed to attract foreign investment in China's petroleum sector. PetroChina then took a fifty-percent stake with CNPC in yet a new company, the CNPC Exploration and
Development Company. n50 The argument can be [*428] made that PetroChina is the alter ego of CNPC, sharing many of the same board members, officers, and even the red
and gold rising sun logo. n51 Indeed, industry research experts agree that "investors should treat CNPC and PetroChina as if they were a single entity." n52 Image 1 CNPC is
n53 Still other companies have been
involved in the Sudanese genocide and some have even been taken to court in civil
actions. Most recently, the Canadian petroleum corporation Talisman Energy was sued in U.S. federal court under the Alien Tort Statute. n54 [*429] On the question of
involved with other national petroleum companies through consortium agreements in Sudan.
how far to pursue prosecutions against corporations, the chief argument will be this: where does complicity to genocide stop? At some point, the line of complicity becomes
tenuous. And it is at this point that prosecutorial discretion kicks in and removes the question from the legal realm to the political and economic realm. For instance,
on
the question of CNPC's complicity in the Sudan genocide, does a prosecutor who is
frustrated in bringing a case against CNPC then go after its key investors? How about
going after PetroChina--CNPC's subsidiary and alter ego? How about PetroChina's
investors? That may be a bridge too far. As Nicholas Kristof, the New York Times columnist who has served as America's public conscience on the Sudan, notes: The
biggest U.S. investor in Class H shares of PetroChina, a Chinese oil concern whose parent company is active in Sudan, is Warren Buffett's Berkshire Hathaway. I have huge
respect for Mr. Buffett, and he may be thinking: My obligation is to make money for shareholders, not to use their investments in a dubious attempt to save the world. But surely
if Berkshire Hathaway and Fidelity mutual funds saw lucrative opportunities in selling bayonets to the janjaweed, they would balk at that. We do have limits; the question is
where we draw them. n55 How can one say that Berkshire Hathaway, led by Warren Buffett, the mild-mannered octogenarian billionaire of Omaha, Nebraska, is responsible for
the genocide in Sudan? A prosecutor would find the investment connections too tenuous. The knowledge base of Berkshire Hathaway is insufficient and too difficult to prove.
But not so for CNPC (or possibly PetroChina), which is actually complicit in the genocide that clears the land for safe oil exploration in the concession blocks awarded to it by the
Sudanese government. The mens rea applicable to a complicity charge is knowledge. "It is sufficient that the accused had knowledge of the principal offender's intention to
Large corporations would always argue that, whatever
atrocities their employees or agents were complicit in undertaking, the company did not
have the knowledge required to secure a criminal conviction. And CNPC would certainly argue this with respect to
commit a crime of the type that was in fact committed." n56
the [*430] massacres by the janjaweed militias orchestrated by the Sudanese government. But that argument is a fleeting one in the modern world of the multinational
corporation, as Thomas Friedman deftly pointed out in his interview with IBM's vice president for business consulting services, Laurie Tropiano: What Tropiano and her team at
IBM do is basically X-ray your company and break down every component of your business and then put it up on a wall-size screen so you can study your corporate skeleton.
Every department, every function, is broken out and put in a box and identified as to whether it is a cost for the company or a source of income, or a little of both, and whether it
is a unique core competency of the company or some vanilla function that anyone else could do possibly--cheaper and better. "A typical company has forty to fifty components,"
Tropiano explained ... , as she displayed a corporate skeleton up on her screen, "so what we do is identify and isolate these forty to fifty components and then sit down and ask
[the company], "How much money are you spending in each component? Where are you best in class? Where are you differentiated? What are the totally nondifferentiated
components of your business? Where do you think you have capabilities but are not sure you are ever going to be great there because you'd have to put more money in than you
want?'" When you are done, said Tropiano, you basically have an X-ray of the company, identifying four or five "hot spots." One or two might be core competencies; others might
be skills that the company wasn't fully aware that it even had and that should be built up. Other hot spots on the X-ray, though, might be components where five different
departments are duplicating the same functions or services that others outside the company could do better and more cheaply and so should be outsourced ... ." n57 Major
companies today, the ones most likely to be involved in transnational trade that supports genocide, cannot reasonably claim that they don't know what they're doing. Myriad
internal and external economic and financial pressures practically mandate that all sectors of a corporation justify themselves along cost-benefit lines. And that path reveals to
the company exactly what is happening as it conducts business. But at some point along the knowledge spectrum a line must be drawn beyond which it becomes unreasonable to
presume knowing participation. Without knowing what a company knows, perhaps the prosecutor draws the line along a set of objective criteria like scale, [*431] impact, and
consequence. While it is true that Berkshire Hathaway was the second-largest investor in PetroChina which is, in turn, owned by CNPC, which is the largest investor in the
Sudanese oil industry and the winner of concessions that are developing oil in the Darfur region, it cannot be said that PetroChina's support of CNPC would be significantly
hampered without Berkshire Hathaway's support. Indeed, Berkshire divested from PetroChina in 2007 and what happened? Aside from a momentary drop in stock price, other
investors filled the gap and PetroChina went about expanding its business just as its parent company, CNPC, went about expanding its business in the Sudan. So, in this
scenario, while scale of investment could have impacted the company that was linked to the company that was complicit in the genocide, it did not. There was no impact, and,
one could argue, Berkshire was incapable of having any impact on CNPC's Sudan operations via its PetroChina holdings. Moreover, there was no consequence of Berkshire's
withdrawal from PetroChina. Thus, even Berkshire Hathaway was impotent to affect any of CNPC's activities. But, while the convergence of scale, impact, and consequence is
perhaps where the line should be drawn for legal purposes, political, social, and economic pressure to encourage divestment work well--particularly in the West. Mr. Buffett's
shareholders confronted him at his company's annual meeting in May 2007, after Berkshire Hathaway's investment in PetroChina became widely known. n58 Investors insisted
that Berkshire divest due to PetroChina's link to CNPC and the Sudan genocide. Subsequently, Berkshire Hathaway began divesting from PetroChina--completing the process in
October 2007. Ever the businessman, Mr. Buffett regretted this action, observing that, in his opinion, the sell-off would not benefit the Sudanese people, and noting, ""If
[PetroChina stock] went down a lot, I'd buy it back'" and that ""we still sold it too soon. I left a lot of [*432] money on the table.'" n59 Berkshire Hathaway earned about $ 3.5
companies rely much less on the goodwill of
shareholders or the citizens in the countries where they are based. One could no more
imagine Russians pestering Gazprom to divest from a questionable enterprise than one
could imagine Chinese protesting the activities of CNPC or PetroChina. The political,
social, and economic leverage that can be effective against non-Western corporations is
scant. Boiled down to an elemental statement of liability, Professor Andrew Clapham proposes this succinct statement: Where a corporation
assists another entity, whether it be a state, a rebel group, another company, or an individual, to commit an international
crime, the rules for determining responsibility under international law will be the rules
developed in international criminal law. The corporation will be responsible as an accomplice, whether or not it intended a crime to be
billion on a $ 500 million investment. n60 Beyond the West, however,
committed, if it can be shown that (a) the corporation carries out acts specifically directed to assist, encourage, or lend moral support to the perpetration of a certain specific
international crime and this support has substantial effect upon the perpetration of the crime; and (b) the corporation had the knowledge that its acts would assist the
commission of the specific crime by the principal. n61 This encapsulation incorporates both the substantial-effect notion articulated above and the assistance notion, together
with the knowledge test. Yet defenders of corporate impunity would maintain that to prosecute companies is, nonetheless, bad policy because it would result in regular harm to
innocent bystanders. n62 If a company closes as a result of criminal prosecution (or even just as the result of a criminal indictment like Arthur Andersen), n63 regardless of the
verdict, [*433] then the lower-level employees in the copy room or the cleaning offices in the basement, who had nothing whatsoever to do with the criminal activity, lose their
jobs. If a company's stock plunges upon its indictment, then elderly pensioners who invested all their savings in that stock are suddenly destitute. Although this "might be the
such prosecutions will be rare, and the
multinational corporations likely involved would be huge and able to withstand the
charges. Moreover, one cannot assume that all shareholders or employees are not cognizant of what the company is doing, nor can one "condone impunity for the sake
inevitable fallout of corporate criminal responsibility," n64 the fact is that
of economic and social development." n65 Finally, there is the question of economic development. All of the financial and banking apparatus of the West and the international
community encourage investment in the developing world. How can a multinational corporation avoid the chilling effect of possible indictment when investing or doing business
in a developing country? Won't this possibility discourage that much-sought-after infusion of funds, technology, and jobs? The answer is simple. Don't commit genocide, and
you won't be prosecuted. Clearly, a more definite causal chain between CNPC and Khartoum's decision to commit genocide is needed. Those facts would never come to light
without an
effort to thwart corporate impunity for complicity in genocide, the impunity will remain
indefinitely.
without a prosecution--or perhaps even with one. Intent is difficult enough to prove with respect to individuals, let alone corporate entities. Nevertheless,
Other Scenarios
Impact – Dollar Heg
Broad FSIA allows Argentinian banks to avoid suits with creditors –
undermines confidence in the dollar
Schubert, JD Candidate Brooklyn Law School, ’13 (Martin, Spring, “When Vultures Attack: Balancing
The Right To Immunity Against Reckless Sovereigns” Brooklyn Law Review, 78 Brooklyn L. Rev. 1097,
lexis//bueno)
Argentina and its creditors have battled in domestic courts around
the world and through international dispute resolution forums with no end in sight. n191
IV. Stalemate For more than ten years,
[*1124] While the vulture funds have had modest successes in their attachment efforts, n192 it would be a stretch to call their efforts successful. n193 On the other side,
Argentina has damaged its reputation as a responsible financial partner. n194
Courts in the United States and abroad are caught in the middle of these disputes and often
reach incongruous results, even within the same jurisdiction. While the Second Circuit's NML Capital decision protected Argentine assets from
creditors, the same court's recent interpretation of pari passu clauses in Argentine bond documents constituted a victory for holdout creditors such as the vulture funds. n195
Rather than clarifying the murkier waters of global finance, the various
interpretations of the [*1125] FSIA, and the inability to enforce those
interpretations, leave all parties at a stalemate. Consequently, neither side has leverage
to negotiate, proposed solutions fail, and political and economic realities often dwarf
legal considerations. n196 A. No Incentives Despite the legal and financial complexities of the decade-long litigation, the reason why the parties have reached
an impasse is surprisingly straightforward--a lack of pressure to negotiate. n197 Creditors refuse to settle for less than the full amount due, while sovereign debtors demand
settlement on their own terms, realizing that foreign judgments are unenforceable against them. n198 While sovereign debt restructurings sometimes create incentives for
creditors to work with a debtor, n199 those incentives may be absent for lenders, such as vulture funds, who seek "the highest immediate return" on their investments, view
regulation as a nuisance, and have little sympathy for their sophisticated, sovereign counterparties who claim that they cannot afford to honor their agreements. n200 However,
the vulture fund strategy is not without legal precedent. In Elliot Associates L.P. v. Banco de la Naci[#xF3]n, n201 a fund associated with financier Paul Singer purchased
discounted Peruvian debt and sought to enforce the original agreement's more favorable terms. n202 While the district court denied Elliot's request (because it found that the
fund had the intent to sue at the time of the purchase), n203 the Second Circuit [*1126] reversed. n204 And although other creditors accepted Peru's restructuring offer, n205
Elliot eventually "wrung a settlement from Peru [in 2000] worth five times what it had paid . . . in 1996." n206 Elliot's court victory and successful holdout strategy may be the
only path for holdout creditors because their other recourse, refusing to lend to untrustworthy borrowers, may "lose[] force . . . when measured against economic distress or
outstanding political benefits" within the debtor nation. n207 Argentina's actions in the wake of its 2001 default reinforce the idea that responding to an angry electorate at
home may trump the collateral damage of diminished access to the international capital markets. Faced with high rates of unemployment and buoyed by the IMF's self-critique
of its role in creating the crisis, n208 Argentine leaders benefited politically by (1) blaming the IMF for its role in the crisis, n209 and (2) maintaining a hard line against
unpopular vulture funds n210 whose ties to the United States have soured foreign relations. n211 One commentator views this hard line as an effort "to discourage creditors from
the conduct . . . of the creditors in Elliot," n212 --an approach that backfired during Argentina's unilateral "take it or leave it" restructuring proposal in 2005, n213 which was met
with lower rates of creditor acceptance than other restructuring countries n214 and a decade of mounting U.S., [*1127] foreign, and international court judgments. n215 In effect,
the vulture funds have decided that the only way to fully vindicate their rights is to pursue an uncompromising global litigation strategy. n216 B. Inadequate Solutions One
solution to the stalemate is an international bankruptcy model that has roots in the U.S. Bankruptcy Code's Chapter 11 framework for corporate restructurings. n217 On one
level, such a framework seems necessary because no such international enforcement mechanism exists with the ability to penalize a sovereign borrower. n218 One of the unique
features of a corporate restructuring is the debtor's ability to maintain control of the business and secure private funding for the reorganization. n219 A parallel path could be
created for bankrupt nations in which private capital markets would finance the sovereign restructuring, preventing the "moral hazard" that may occur when sovereign debtors
manage their finances irresponsibly in reliance on an eventual IMF bailout. n220 Though proposals for such a framework, known as the Sovereign Debt Restructuring
Mechanism (SDRM), rely on a plan negotiated by a majority that would be binding on all creditors, it is likely to cause opposition by minority creditors such as the vulture funds.
Responses to the current stalemate that propose the use of voluntary exchange offers and exit consents n221 or contract-based collective action clauses (CACs) n222 are also
inadequate. [*1128] Argentina used exchange offers and exit consents in its 2005 and 2010 restructurings, but the vulture funds rejected any restructuring that offered less than
the full value on the original terms of the bonds. n223 Similar to the SDRM, CACs bind minority creditors to majority decisions, an approach that does not fit the complex reality
of creditor interests in the Argentine restructuring, which included 152 bond issues, seven currencies, and the laws of eight countries. n224 C. Policy Considerations Aware of the
vulture funds rely on the belief that U.S. courts will vindicate their
rights through the FSIA. However, Judge Thomas P. Griesa of the U.S. District Court for the Southern District of New York, who presided over
most of the litigation and entered several judgments in favor of the vulture funds, has often reminded plaintiffs that "they have rights
but may not have remedies." n225 His words became particularly prescient when the NML Capital decision gave new force to foreign central bank
inadequacy of these approaches,
immunity from attachment, n226 a position that the FRBNY and the U.S. government supported as amici curiae. n227 In light of the bipartisan political support for refusing to
the amicus briefs on Argentina's behalf seem
contradictory. While the power of the creditors' lobby in Washington may explain recent political support, n229 an even more commanding influence drives in
favor of protecting Argentine assets in the United States--namely, the goal of maintaining international funds in the United States. n230 When foreign funds
at the FRBNY are placed at risk of attachment, uncertainty causes foreign officials to
withdraw funds, potentially having "an unsettling effect on foreign exchange markets . . .
[,] international monetary [*1129] stability," and "the U.S. balance of payments." n231 As
assets leave the United States for safer jurisdictions, such as Switzerland's attachment-proof Bank of International
Settlements, n232 the flight may begin to affect the value and preeminence of the
loan money to Argentina until it pays its U.S. court judgments, n228
dollar. Although the Second Circuit based its statutory interpretation of foreign central bank immunity from attachment on the "plain language" of the FSIA, n233 these
enormous political and economic factors can be powerful drivers behind courts' reasoning. Conclusion Foreign central banks present
challenging issues for purposes of sovereign immunity. As a banking entity, the central bank is commercial by nature--a
fact that Congress accounted for when it drafted the special foreign central bank provisions of $ S 1611(b)(1). n234 Unless there has been an explicit waiver of a foreign central
bank's immunity, courts should follow the NML Capital precedent and grant broad immunity to the assets of foreign central banks in the United States. In the unlikely event that
Congress moves immediately to amend the statute, there are strong legal, political, and economic arguments for interpreting $ S 1611(b)(1) as a bulwark against the attachment
As disgruntled creditors begin to realize that the United States
has strong incentives to protect foreign central bank assets and foreign nations start to
understand the severe impact of default on their reputation as credible borrowers, each
party should develop renewed incentives to negotiate disputes and continue
participation in international capital markets. Until then, the blame game will continue.
of foreign central bank assets in the United States.
Impact – Environment
FSIA used to prevent suits against environmental damages
Akpan 2- LLB (Honours) degree from the University of Uyo, Nigeria; an LLM from the University of
Lagos, Nigeria and an LLM in Natural Resources Law and Policy from the University of Dundee, UK. He
has taught law in the University of Uyo, Nigeria for many years. Presently, he is a ResearchScholar at the
Faculty of Law,National University of Singapore (George S ,“Litigating Problems that Arise from Natural
Resources Exploitation in Foreign Courts: Impediments to Justice”, 20 J. Energy & Nat. Resources L. 55
2002 , hein online)//kw
Sovereign immunity as a barrier to foreign suits¶ How does this defence affect members
of the host communities¶ injured in the exploitation of natural resources who seek to
maintain¶ suits in the United States and elsewhere against state parties or their¶ entities? The way the courts have applied
the tests to the commercial¶ act exception suggests that such plaintiffs have no hope of success if ¶
they are to sue foreign sovereigns and their entities in the United¶ States and other jurisdictions.¶ Application
of the commercial exception test¶ Many states now recognise the principle that commercial acts of states ¶
are not governed by immunity. The problem with this exception has¶ been with determining when
an act may be termed a commercial act¶ for the purposes of denying immunity.43 The construction of an act¶
using either the nature or purpose test is problematic and may pose serious challenges to the foreign
plaintiff when the act concerns an¶ area as vital as a country's natural resources. In the first place,
the¶ commercial exception test has been construed to defeat extension of ¶ commercial character to a foreign state's management of its natural¶ resources. This is based on the fact that
management of vital resources¶ of the state is exclusively a public act, entitled to immunity. Since¶ most of the suits
of the foreign plaintiffs implicate foreign state¶ conduct in the management of its natural resources, it would mean ¶ that if such a state or its entities were sued in foreign courts, it would¶ escape liability by simply
seeking shelter under the Act. This conclusion derives support from the cases that have been¶ decided by the US courts. In InternationalAssociation of Machinists¶ v OPEC," the plaintiff, a US trade union, argued
OPEC price¶ policy for the sale of oil and the policy of production quota violated¶ US
antitrust laws. One of the questions confronting the court was¶ whether the defendant's act in marketing the oil
could be characterised¶ as a commercial act or whether it should be regarded as a¶ governmental act in setting terms for the removal of
that
a prime natural¶ resource from the state territory. The trial court sought reliance on¶ declarations and resolutions of the United Nations and came to the¶ conclusion that a state has permanent sovereignty over
the management of a state's¶ natural resources was a noncommercial act and granted immunity.¶ This decision was reversed on appeal and
immunity was granted on¶ other grounds.¶ Despite its reversal, the case was relied upon to grant immunity in¶ another case involving oil exploration. In
its natural¶ resources. The trial judge was certain that
Re Sedco," a blown-out¶ well washed oil ashore in the Gulf of Mexico. The oil caused injuries¶ to the plaintiff. The well was drilled by PEMEX, an entity owned by ¶ the Mexican Government. The court took the
view that the act of¶ drilling was governmental as it involved 'long range planning and¶ policy formulation concerning... state owned minerals'. Although ¶ this decision was later vacated, its vacation was based on
the¶ exploitation of vital state natural
resources from which many of the¶ injuries to local population results, if engaged in by
the government¶ or its entities is not a commercial act and will be subject to immunity.¶
As most of these resources are exploited by government/entity¶ through a joint venture in which the
government holds majority¶ shares, such joint ventures, if sued, may be able to claim immunity.¶ This
decision has been criticised as being 'without basis in the¶ legislation, its history or cases construing it'." But the point remains¶ that where a suit implicates the
management of natural resources of¶ a foreign state, which causes injury to the plaintiff,
it will be difficult¶ to defeat the characterisation that such an act is a governmental one.47¶ If this
were the case for natural resources, then a case based on¶ environmental damage consequent upon a state's
action or inaction¶ would suffer a worse fate. The management of the environment is¶ clearly not a private act but a public act of state, which will
the ground¶ that it was not clear whether the well was an exploratory well or a¶ production well. The decision, thus, seems to suggest that
enjoy¶ immunity under this doctrine. Whatever test is used, a government's¶ management of its critical natural resources and environment are¶ clearly to effect a public purpose, which would be entitled to ¶
where the
allegation is that the state used police powers¶ to cause injuries or other human rights
abuses to the plaintiff in the¶ process of resources development, it would be difficult to
ascribe a¶ private character to such conducts. The law appears to be that where¶ police power is used by the state
and its entity to cause injuries to the¶ plaintiff, such acts could not satisfy the
immunity. Thus, members of the host community bringing their suits¶ in foreign courts would be hard put to prove that the case falls within¶ the commercial activity exception. Secondly,
commercial exception¶ requirements of the law. Such powers are sovereign in nature and¶
would attract immunity.48 As suits in resources development may¶ allege tort or human rights abuses resulting from abuse of police¶ powers, it follows that the pleas of immunity
would be available for¶ such abuses. Thus, in Nelson v SaudiArabia,a9 the US Supreme Court¶ took the view that
Saudi Arabia's wrongful arrest, imprisonment and¶ torture of a US citizen working at a
Saudi hospital could not be¶ considered commercial in nature for the purposes of Clause 1 of the¶ commercial activity exception. 0 The
recent case of Doe v Unocal"' further supports the conclusion¶ that where suits by members of the host populations
are based on¶ human rights or torts arising from the abuse of state police powers,¶ such
acts would be covered by immunity. Applying the nature test,¶ the court noted: 'instead of asking whether the foreign state is seeking¶ to profit from its activities,
"the issue is whether the particular actions¶ that the foreign state performs (whatever the motive behind
them)¶ are the type of actions by which a private party engages in 'trade and¶ traffic or
commerce" . 52 It concluded that the allegations against the¶ State Law and Order Restoration Council (SLORC) and the Myanma¶ Oil and Gas Enterprise (MOGE) (state and state entity) in the
alleged¶ violations of the plaintiffs' human rights, allegedly committed in¶ connection with the Yadana gas pipeline project, were outside the¶ ambit of the commercial activity exception.
Impact – SSA
Key to space P3s for SSA
Howard, LLM Candidate McGill University Institute of Air and Space Law, ‘8 (Diane, Fall, “Achieving
A Level Playing Field In Space-Related Public-Private Partnerships: Can Sovereign Immunity Upset The
Balance?” Journal of Air Law and Commerce, 73 J. Air L. & Com. 723, lexis//bueno)
Commercial space mirrors this trend toward hybrid entities; examples can be found in a
host of space applications encompassing remote sensing, international
telecommunications, global navigation, proposed space solar power systems, and
spaceports. Because this paper is primarily concerned with the space industry, specific examples are given below. In the United States, the
Department of Defense partnered with Intelsat, Ltd. and Cisco Systems, Inc. to facilitate highspeed internet access to military units not tied to a particular location. n27 The initial cost will be borne by
private investors and a private equity fund, in hopes that "the military will make long-term commitments to support [future technologies] and new acquisition procedures." n28
The technological application will be added to an Intelsat satellite already under construction. n29 The project includes government monies for testing and evaluation, [*730]
Other examples of
satellite operations that bridge the public-private divide include COSMO-SkyMed,
TerraSAR-X, RADARSAT-2, and Skynet. COSMO-SkyMed, jointly developed by Italy and France, is a program of the Italian space
but allows the military to test the new hardware for a fraction of the cost if the project was contemplated as purely military. n30
agency and the Italian Ministry of Defence and consists of the first of four satellites planned to form a dual-use (military and civil) earth observation system. n31 On the other
The objectives of
this partnership are the provision of data for scientific research and applications and the
establishment of a commercial earth ob-servation market and sustainable business. n33
Earth observation collaboration can be found in RADARSAT-2, between the Canadian Space Agency ("CSA")
and MacDonald, Dettwiler and Associates, Ltd. n34 The CSA will recover its financial investment in the program through the supply of RADARSAT-2 data to
hand, TerraSAR-X is a German radar satellite resulting from the partnership between the German Aerospace Center and Astrium GmbH. n32
Canadian government agencies during the lifetime of the mission. n35 Skynet 5 is a military telecommunications satellite that is owned by a private company, Paradigm Secure
Communications, a subsidiary of Astrium, the space arm of the European Aeronautic Defence and Space Company ("EADS"). n36 Additionally, commercial imaging firms
Rouge, new head of the U.S.
National Security Space Office, has acknowledged the interdependence of public and [*731] private sectors, both
from the perspective of space situational awareness n38 and that of long-term relationships - including multi-year contracts DigitalGlobe and GeoEye have partnered with the U.S. Geological Survey in support of a global emergency response network. n37 Joseph
between the U.S. government and commercial satellite and remote sensing companies. n39 Neighborhood Watch is the U.S. military program aligning government and industry
The U.S. military, heavily reliant
on satellite communications, publicly has recognized the importance of the commercial
sector in meeting its capacity shortfalls. n41 The U.S. Defense Information Systems Agency intends to upgrade the Transformational
resources to address the escalating amount of space debris and to increase space situational awareness. n40
Communications Architecture serving the Department of Defense, the intelligence community, and NASA; the new version will expand the potential role of COMSATCOM and
will leverage emerging commercial satellite capabilities. n42 Another example of the dynamic shift between commercial and government space is NASA's $ 500 million U.S.
Commercial Orbital Transportation Services ("COTS") program, designed to spur private development of commercial spacecraft that also can service the International Space
Station. n43 NASA agreements provide companies with the projected requirements, objective criteria, information, and acknowledgement when performance milestones are
NASA plans to give away half of its rack space on the International Space Station as an incentive for participation in the COTS program, n45 and is
shopping [*732] for commercial and military users of the Ares launch vehicles being developed for its Constellation
met. n44 In addition,
program. n46 Two leading aerospace companies, Boeing and Lockheed Martin, plan to expand their joint venture, United Space Alliance (created to operate NASA's shuttle
fleet) into "software packages designed to support human exploration of the Moon." n47 The plan is to use information from NASA's 2008 Lunar Reconnaissance Orbiter in
conjunction with lessons learned from past human spaceflight on the shuttle to develop applications ranging from mission design to in-ventory control. n48
Spaceports probably lend themselves most easily to extrapolation of state immunity doctrine
in a P3 structured project because of their similarities to airports and port authorities, for
which there is some existing precedent. n49 Spaceport America unveiled design renderings for its commercial spaceport center in Sierra County, New Mexico. n50 The project is
the first "purpose-built" commercial spaceport, n51 and is projected to stimulate as many as 5,000 new jobs and contribute as much as $ 1 billion to the New Mexico economy.
n52 The spaceport will be home base for Richard Branson's Virgin Galactic, n53 is facilitated by a county Spaceport Tax, n54 and is a good example of a public-private
partnership. When completed, the facility will house aircraft and spacecraft, as well as Virgin Galactic's operations, including [*733] pre-flight and post-flight facilities,
administrative offices, and lounges. n55 Space Florida is the public-private partnership legislatively created to promote the development of Florida's aerospace industry. n56 The
cooperative venture has begun with a spaceport using already existing infrastructure, and envisions multiple spaceports throughout the state, supporting commercial space and
Despite these successful examples of ventures
that fall within the spectrum of public-private cooperation, instructive is
the sad story of Europe's Galileo, a global navigation service system. The European Commission
abandoned the original plan for substantial participation by the private sector in the face
personal spaceflight, as well as military and civil applications. n57
of liability concerns. n58 In June 2007, transport ministers decided to go ahead with Galileo as a publicly-funded project. n59 The failure of
the state-private partnership in the Galileo project demonstrates why appropriate
allocation of risk between public and private partners necessitates
discussion of state immunity. It is easy to imagine scenarios in which the public partner of a spacerelated P3 could attempt to evade a lawsuit . A breach of contract flowing from the
P3 agreement itself could be avoided. Third party liability to private parties for accidents in a spaceport launch facility (such as the
explosion at Scaled Composites in 2007) n60 could be circumvented. A government partner could sidestep liability for any
simple slip-and-fall in a spaceport or facility of a space P3. Responsibility for damage
from the cessation or malfunction of a signal of a global emergency response system or
navigation system could be dodged. [*734] It is worth noting that the International Civil Aviation Organization ("ICAO") listed
sovereign immunity as an identified liability concern for the Global Navigation Satellite
System in its Final Report on the Work of the Secretariat Study Group on Legal Aspects of CNS/ATM Systems. n61 And, in litigation now before
the U.S. courts, an Israeli-owned and controlled remote sensing corporation, ImageSat,
has claimed immunity in a shareholder's derivative action questioning business
decisions. n62 An understanding of the background, purposes, and mechanics of government immunity can only help the space industry address these situations
proactively.
Impact – Corporations
FSIA allows sovereigns to exploit corporations
Alford 8- Associate Professor of Law, Pepperdine University School of Law, Malibu, California. L.L.M,
University of Edinburgh, 1992; J.D., New York University, 1991; (Roger P., “Arbitrating Human Rights”,
January 2008, 83 Notre Dame Law Review 2) //kw
This Article suggests that the solution to this problem can be found in contract and arbitration law. If a corporation is engaging in joint action with government actors, then
A brief perusal of the human rights claims
that have been filed against corpo- rations shows that they almost always are premised
on some contrac- tual agreement between the corporation and the sovereign. Pfizer
allegedly contracts with the Nigerian government for the testing of experimental drugs on
unsuspecting Nigerians.55 Unocal and Burma are in a joint venture for the construction
of a pipeline that allegedly resulted in displacement of villages and the use of forced labor.56
Titan contracts with the United States for the detention and interroga- tion of prisoners
at the Abu Ghraib prison in Baghdad.57 Exxon Mobil is allegedly jointly and severally liable
for human rights abuses allegedly committed by the Indonesian military assigned to protect
gas production facilities in northern Sumatra.58 The Colombian Air Force is alleged to have
bombed Santo Domingo, Colombia, killing numerous villagers, in order to protect Occidental's
pipeline.59 Talis- man Energy allegedly aided and abetted the ethnic cleansing of Chris- tians
by Islamic forces in Sudan by building roads and airports.6o Dow Chemical manufactured and sold the herbicide
"Agent Orange" to the United States government for use in the Vietnam War.61 Texaco and Ecuador have a joint venture for
the extraction of oil that alleg- edly leads to environmental damage in the Ecuadorian Amazon.62 In
almost by definition the par- ties are acting pursuant to some contractual relationship.
these and similar cases, plaintiffs allege that international law viola- tions resulted from joint action between the corporation and the sov- ereign pursuant to a contractual
the contract between the corporation and the sovereign may well
govern the question of shared responsibility for third-party harms. The contractual relationship between the corpora- tion and the
sovereign is a significant component in human rights litigation, far more relevant than is currently reflected in academic commentary. A foreign
investment agreement (or similar agreement) between a corporation and a sovereign typically will
include provisions addressing performance obligations, conditions, representations and warranties, affirmative and negative covenants, governing law, indemnifications, waiver of sovereign immunity, and provisions for arbitra- tion.53 Of these provisions, two are of particular importance to human
rights claims: waiver of sovereign immunity and arbitration clauses. A contractual provision in which the sovereign
entity waives immunity is quite common in foreign investment agreements, as it is the
most effective way to place a sovereign party on an equal footing with the private
party.54 A typical waiver of sovereign immunity clause provides that the sovereign entity hereby
irrevocably waives any claim to immu- nity in regard to any proceedings to enforce any
arbitral award ren- dered by a tribunal constituted pursuant to this Agreement, including without limitation,
relationship. If this is so, then
immunity from service of process, immunity from jurisdiction of any court, and immunity of any of its property from execution.55 Such an explicit waiver of immunity
overcomes the traditional con- cerns of securing government accountability for noncompliance with contractual obligations. A broadly worded clause stipulating that the
sovereign waives immunity for service of process, jurisdiction, enforce- ment, and execution is designed so that the sovereign will have no claim to immunity with respect to
the FSIA includes a specific
exception for express waiv- ers,67 overcoming concerns of sovereign immunity in these
contexts. Likewise, an arbitration clause in an international agreement with a sovereign is an
extraordinarily common vehicle to secure accountability for sovereign breaches or other illegal conduct arising
out of or relating to the agreement. AB with express waivers, the FSIA includes an exception to immunity for
international agreements that include an arbitration clause and are subject to
international treaty enforcement under the New York Convention.68 Thus, with or with- out an express waiver
of immunity, by agreeing to international arbi- tration pursuant to the New York
any aspect of a legal dispute with the corporation, including the filing of noncontractual tort claims.66 Significantly,
Convention, a sovereign has waived immunity under the arbitration exception of the
FSIA.
Impact – Art
FSIA will continue to be exploited in US courts—art and antiquity cases
Redman 7 -Adjunct Professor of Law and Lecturer in Political Science at Baylor University, J.D. from
the University of Tulsa College of Law , L.L.M. from the University of Texas Law School
(Lauren Fielder, “The Foreign Sovereign Immunities Act: Using a ‘Shield’ Statute as a ‘Sword’ for
Obtaining Federal Jurisdiction in Art and Antiquities Cases”, Fordham International Law Journal Volume
31, Issue 3 2007 Article 7)//kw
The practice of bringing art and antiquities cases in U.S.¶ courts under the FSIA is a trend worth watching. Bringing
art¶ and
antiquities cases in United States federal courts using jurisdiction¶ gained through an
exception to the FSIA is a phenomenon¶ that is certain to continue. All of the factors discussed in¶
Section I show that while this is an old subject, events have lined¶ up in a way that make the present a
practical time to bring these¶ cases, and it would be a mistake to think that the World
War II¶ cases will be the end of this issue. The sad fact is that nations¶ continue to fight with one
another and an unfortunate consequence¶ of war is the looting of artwork and
antiquities. With the¶ line of cases that have emerged, as discussed above, it seems¶ highly likely that federal
courts will hear cases involving artwork¶ or other items of cultural value looted during
the Iraq war. U.S.¶ courts with lower fees and well-established systems are often¶ much more
hospitable for a plaintiffs lawsuit. This fact, combined¶ with the line of cases giving an
expansive interpretation of¶ the jurisdiction-granting provisions of the FSIA, make plain
the¶ fact that U.S. law accepts the FSIA's use as a sword . A crucial¶ question has been
considered but still remains-is this appropriate?¶ Should the FSIA operate in such a way to make the U.S.¶ federal courts the forum
of choice for art and antiquities cases¶ worldwide? This final question should be a call to scholarship to¶ consider how far the courts
should go in interpreting the FSIA as¶ a sword, both in and out of the context of art and antiquities¶ cases.
US courts key to resolve art conflicts
Fishman 10- Law Clerk, the Honorable Jeffrey R. Howard, U.S. Court of Appeals for the First Circuit;
Harvard Law School, J.D. 2009; University of Cambridge, M.Phil. 2006; Harvard College, A.B. 2005
(Joseph P., “Locating the International Interest in Intranational Cultural Property Disputes”, The Yale
Journal of International Law 2010, http://www.yjil.org/docs/pub/35-2-fishman-intranational-culturalproperty.pdf)//kw
Even more vocal on this issue have been U.S. federal courts called on to ¶ interpret international law. The
U.S. court system is particularly significant in ¶ this context because its domestic
jurisprudence makes it one of the most ¶ attractive forums in which to litigate for the
return of cultural objects to their ¶ countries of origin.34 Additionally, under the jurisdictiongranting provisions ¶ of the Foreign Sovereign Immunities Act,35 federal courts are increasingly
¶ adjudicating claims against foreign governments for the restitution of art and ¶
antiquities allegedly expropriated in violation of international law.36 As a ¶ result, the U.S.
position regarding property rights under international law is ¶ often critical for cultural
property claimants.
Art shapes reality and outlet for imagination
Eno 4- Member of the Board of Directors for The Long Now Foundation
(Brian, “The Big Here and Long Now”, 2004, http://www.aughty.org/pdf/bighere_longnow.pdf)//kw
This imaginative process can be seeded and nurtured by artists and designers, for, since
the¶ beginning of the 20th century, artists have been moving away from an idea of art as¶
something finished, perfect, definitive and unchanging towards a view of artworks as¶
processes or the seeds for processes – things that exist and change in time, things that are¶ never
finished. Sometimes this is quite explicit - as inWalter de Maria’s‘Lightning Field’ –¶ a huge grid of metal
poles designed to attract lightning. Many musical compositions don’t ¶ have one form, but change
unrepeatingly over time – many of my own pieces and¶ Jem Finer’sArtangel installation "LongPlayer" are
like this. Artworks in general are¶ increasingly regarded as seeds – seeds for processes that
need a viewer’s (or a wholeculture’s) active mind in which to develop. Increasingly working with
time, culture-makers¶ see themselves as people who start things, not finish them.¶ And
what is possible in art becomes thinkable in life. We become our new selves first in¶
simulacrum, through style and fashion and art, our deliberate immersions in virtual
worlds.¶ Through them we sense what it would be like to be another kind of person with
other kinds of¶ values. We rehearse new feelings and sensitivities. We imagine other
ways of thinking about¶ our world and its future.
Art crime funds terrorists
Charney et al 12 —Professor of art history at the American University of Rome, Paul Denton
(Noah, Paul Denton has a M.B.A., M.S.C.J and John Kleberg has a M.Ed., “Protecting Cultural Heritage
from Art Theft”, March 2012, http://www.fbi.gov/stats-services/publications/law-enforcementbulletin/march-2012/protecting-cultural-heritage-from-art-theft)//kw
When someone thinks of art crime, a Hollywood image is conjured, one of black-clad cat burglars and
thieves in top hats and white gloves. But, the truth behind art crime, one misunderstood by the general
public and professionals alike, is far more sinister and intriguing. Art crime has its share of cinematic
thefts and larger-than-life characters, but it also is the realm of international organized crime
syndicates, the involvement of which results in art crime funding all manner of other serious
offenses, including those pertaining to the drug trade and terrorism. Art crime has
shifted from a relatively innocuous, ideological crime into a major international plague.¶
Over the last 50 years, the U.S. Department of Justice (DOJ) has ranked art crime behind
only drugs and arms in terms of highest-grossing criminal trades.1 There are hundreds of
thousands of art crimes reported per year, but, despite this fact, the general public only hears
about the handful of big-name museum heists that make international headlines. In Italy alone there are
20,000 to 30,000 thefts reported annually, and many more go unreported.2 In fact, even though reported
art crime ranks third in the list of criminal trades, many more such incidents go unreported worldwide,
rather than coming to the attention of authorities, making its true scale much broader and more difficult
to estimate.¶ Fundamentalist terrorist groups rely on looted antiquities as a major funding
source. Mohammed Atta tried to sell looted antiquities in 1999 as a funding source for the
9/11 attacks.3 In regions, such as Afghanistan, local farmers dig up treasure troves beneath the
soil and sell them to local criminal or government organizations for a tiny fraction of their
actual value. The antiquities then are smuggled abroad, given a false provenance, and sold, often
on an open market to unsuspecting museums and collectors who never would imagine that
their purchase might indirectly fund the Taliban.4 One of the most important ways to get the
general public and governments alike to take art crime as seriously as it warrants is to highlight the ways
in which this seemingly innocuous category of crime not only depletes and damages the world’s art and its
understanding of it but also fuels the arms trade, drug trafficking, and terrorist activity.5
I-52
I-52 is the perfect test case
Coolbaugh, 01– J.D., State University of New York at Buffalo School of Law, 2001; B.S.F.S., Edmund A.
Walsh School of Foreign Service, Georgetown University, 1997 (Stephen Paul, “COMMENT: Raiders of
the Lost ... Sub? The Potential for Private Claims of Ownership to Military Shipwrecks in International
Waters: The Case of Japanese Submarine I-52”, 49 Buffalo L. Rev. 929, Lexis-Nexis, NG)
Tidwell's discovery of and subsequent
activities regarding I-52 may work to end this uncertainty once and for all. A legal
showdown between Tidwell and Japan over the fate of I-52 n228 would likely present an ideal case by which to test
whether a federal court will attempt to extend Sea Hunt past United States territorial
waters, and apply some sort of abandonment standard to foreign warship wrecks on the
high seas. Will Sea Hunt, the traditional American approach to dealing with such wrecks, and other recent persuasive
precedent work in conjunction to defeat any and all arguments by which Paul Tidwell
and his team might attempt to convince a U.S. district court to grant them ownership
rights to I-52 and her cargo?
B. Envisioning Cape Verde Explorations, Ltd. v. The Shipwrecked Vessel, Known as I-52
I-52 sets a dangerous precedent that destroys foreign relations
Coolbaugh, 01– J.D., State University of New York at Buffalo School of Law, 2001; B.S.F.S., Edmund A.
Walsh School of Foreign Service, Georgetown University, 1997 (Stephen Paul, “COMMENT: Raiders of
the Lost ... Sub? The Potential for Private Claims of Ownership to Military Shipwrecks in International
Waters: The Case of Japanese Submarine I-52”, 49 Buffalo L. Rev. 929, Lexis-Nexis, NG)
Continuing with this theory, Tidwell might next argue that, where I-52 might be best described today as "a vessel found at sea in a position of danger and without any one of its
crew on board," the law will likely consider her remains to be a derelict. n303 As a derelict, I-52 would not be entitled to special protection under the doctrine of sovereign
immunity. n304 Thus, Tidwell might argue that Japan has implicitly abandoned the submarine, and that he is entitled to ownership rights to both I-52 and her cargo as the
Precedent from any federal
court accepting these arguments would be incredibly detrimental to the State
Department's goal of protecting sunken United States warships abroad, U.S. foreign
relations, the foreign affairs decision-making process, and traditional principles of
maritime law regarding war graves. Furthermore, any decision transferring title of I-52 absent
evidence of express abandonment by Japan would simply not make practical sense. Should
Tidwell commence an ownership action regarding I-52 and theorize that the submarine is no longer entitled to sovereign immunity protection, a court should
reject this implied abandonment argument for public policy reasons. [*1002] First, as Sea Hunt
precisely indicates, the United States' ability to secure protection for the sites of its
warship wrecks around the world is directly related to its ability to guarantee the same
protection for the wreck sites of other nations' warships. n305 As previously mentioned, during district court hearings
salvor in constructive possession of the wreck. Once again, this argument, however intricate, must ultimately fail.
regarding the Sea Hunt case, Spain argued that its sunken warships were entitled to the exact same treatment afforded U.S. warships under U.S. maritime law. n306
Where U.S. courts refuse to accept such requests, the State Department admits, "any
contrary precedent in this area would almost certainly have negative legal and policy
implications against American vessels that have been sunk in past years." n307 If a court should award
Tidwell ownership rights to I-52 absent evidence of express abandonment, such a decision would explicitly recognize that a
double standard does exist in U.S. maritime law regarding the treatment of U.S. and
foreign warship wrecks. n308 It is doubtful that foreign governments would look favorably
upon such a clear statement. Instead, it is highly likely that, in retaliation, such nations
would refuse to defend U.S. rights to American warships sunk in foreign and
international waters. n309 Therefore, U.S. foreign [*1003] relations and the nation's ability to
protect American rights to U.S. warship wrecks located in international and foreign
waters would likely be irreparably harmed if a court were to award Tidwell ownership
rights to I-52 and her cargo pursuant to an implied abandonment argument. Second,
awarding Tidwell ownership of I-52 pursuant to an implied abandonment argument
would interfere in the Executive Branch's conduct of foreign affairs by violating the
letter and spirit of the Joint Statement issued by the United States, Japan, and five other
nations in 1995. n310 By issuing the Joint Statement, these nations attempted to guarantee sovereign immunity for each other's sunken state vessels. n311
According to the Fourth Circuit, where the "Constitution charges the political branches with the conduct of foreign affairs[,]" n312 "it is "not for the courts to deny an immunity
If the United States were prevented from making good
on this sovereign immunity guarantee to Japan as the result of a court decision in favor
of Tidwell, the Joint Statement would lose effectiveness, and this particular American
foreign policy interest, as pursued by the State Department, would clearly be harmed.
Third, any decision in Tidwell's favor would fly in the face of established traditions in
maritime law regarding war graves - traditions that in many ways have been
incorporated into U.S. maritime law and practiced by the U.S. government. One school of thought
holds that, where salvaging a wreck in which passengers and crew died is tantamount to
disturbing a cemetery, treasure hunters should respect and leave undisturbed that
which they find in and around such wrecks as sacred items resting in a grave with the
deceased. n314 Combining the doctrine of [*1004] sovereign immunity with this notion of respecting maritime graves, it can be inferred that, under maritime law,
which [the United States] government has seen fit to allow.' " n313
"sunken state vessels and aircraft containing crew remains are ... entitled to special respect as war graves and must not be disturbed without the explicit permission of the
sovereign state." n315 This same general principle is also part of U.S. policy and U.S. maritime law. n316 By issuing the Joint Statement, and clearly with an eye toward maritime
traditions, the State Department has acknowledged that where sunken "warships and aircraft may be the last resting place of many sailors and airmen who died in the service of
their nations," they are "historical artifacts of special importance and entitled to special protections." n317 Adopting this [*1005] position, the Fourth Circuit found in Sea Hunt
, findings of
implied abandonment of foreign warship wrecks by U.S. courts are improper because
they would do harm to U.S. maritime law policy and tradition regarding war graves. n319
Finally, where U.S. and foreign warships sunk during the same military campaign often lie
intermingled on the ocean floor, a decision holding that foreign nations may indeed lose
title to their sunken vessels by implication - despite the fact that the United States
cannot lose title in similar fashion n320 - would be impractical. As the technological capabilities of maritime
explorers continue to grow as we enter the twenty-first century, it is increasingly likely that the world will attempt to
resurrect its deep-water naval casualties. For example, Dr. Robert Ballard and the National Geographic Society have recently used
that "nothing in the law of admiralty suggests that Spain has abandoned its dead by respecting their final resting place at sea." n318 As a result
state-of-the-art technology to locate and explore the deep-water wrecks of four Japanese and one American aircraft carriers, and one American destroyer, sunk during the Battle
of Midway. n321 [*1006] Further impressive discoveries will likely bring with them novel legal challenges on the part of eager commercial salvors. For his part, Ballard is
confident that there is no need to secure any additional protection to prevent the salvage of these wrecks, given legal precedent and the doctrine of sovereign immunity.
n322 If any court were to accept implied abandonment arguments regarding foreign
warship wrecks, however, it is possible that, although the two American ships sunk at
Midway would clearly remain protected, the Japanese ships might then be at the mercy
of commercial salvors. Yet, where all six vessels were sent to the bottom as the result of warfare, in the same battle, and within approximately the same
area of the Pacific Ocean, n323 it makes little logical sense for the law to differentiate among them in
terms of the applicability of an implied abandonment standard. Instead, these ships, alike from death
onward in all meaningful manners, deserve to be treated with the same degree of reverence - and thus
sovereign immunity - regardless of nationality. Should Tidwell commence an ownership action regarding I-52 and theorize that
the submarine is no longer entitled to sovereign immunity protection, a court must reject this implied abandonment argument for public policy reasons. VI. Conclusion
Notwithstanding the continued development of United States maritime law, one principle, expressed creatively by [*1007] Rafael Conde, the deputy chief of mission at the
foreign nations may expressly abandon
their sunken warships at any time, and for any reason. In turn, it is proper for United States
courts to award ownership rights to salvors in possession of these shipwrecks under
such circumstances. Yet, it is not the duty of United States courts to divest foreign nations
of the rights to their sunken warships where such nations have not clearly indicated
Spanish Embassy, remains unassailable: "[a] warship is a warship is a warship." n324 Clearly,
their intent to give up title by express act. Such divestitures by U.S. courts would only
jeopardize the United States' ability to secure protection for its warship wrecks abroad
by establishing rules that simply do not make practical or moral sense. Instead, by clearly and
consistently rejecting even novel implied abandonment arguments made by salvors in
search of ownership rights to foreign warship wrecks, United States courts can
emphasize the practical importance of the principles of comity and sovereign immunity,
demonstrate universal respect for sunken warships' status as war graves, and
successfully defend the similar national interests of the United States of America.
Salvaging Firms Advantage
Uniqueness
Salvage Costs High
Increased costs for commercial salvage now – no incentive to find
shipwrecks without a change
Regan ‘5 (Rob Regan, presently completing his LL.M. thesis, Sovereign Immunity and the Lost Ships of
Canada's Historic Merchant Fleet, at Queen's University, Ontario. LL.B. 2004, Queen's University; B.A.
1988, University of British Columbia, “When Lost Liners Become Found: An Examination of the
Effectiveness of Present Maritime Legal and Statutory Regimes for Protecting Historic Wrecks in
International Waters with Some Proposals for Change,” 29 Tul. Mar. L.J. 313, 314-15, 2005, Lexis)//ER
In a series of recent decisions, U.S. courts have extensively considered
these issues, as well as the need for salvors to preserve the integrity of the wreck while
engaged in salvage operations. In Columbus-America Discovery Group v. Atlantic Mutual Insurance Co., n69 the United States Court of Appeals
D. A New Element of Salvage
for the Fourth Circuit considered at length the issue of wreck protection and added another element for salvage tribunals to consider when adjudicating the quantum of wreck
awards in the specific instance of historical wrecks: The Salvor's Preservation of the Historical and Archaeological Value of the Wreck and Cargo. n70 Justice Russell, writing for
salvors who seek to preserve and enhance the historical value of ancient
shipwrecks should be justly rewarded." n71 In coming to this conclusion, the court followed the lower court ruling in MDM Salvage, Inc. v.
the majority, noted that "
The Unidentified, Wrecked and Abandoned Sailing Vessel: Archaeological preservation, onsite photography, and the marking of sites are particularly important in the instant
the public interest is compelling in circumstances in which a treasure ship,
constituting a window in time provides a unique opportunity to create a historical
record of an earlier era. These factors constitute a significant element of entitlement to
be considered when exclusive salvage rights are sought. n72 Although this decision is
relatively new and only has precedential value in the United States, it remains a
breakthrough case because it rewards the preservation efforts of careful salvagers and
takes into [*327] account the salvors' increased costs in searching and locating these wrecks.
It also explicitly indicated when the law of finds will be imposed instead of the law of
salvage. Hopefully, this decision will prove to be persuasive in other jurisdictions. If this
context, as
element is eventually accepted in other jurisdictions, it could ultimately become enshrined in later amendments to the 1989 Salvage Convention n73 or the planned IMO
which could lead to an internationally accepted guideline for
preservationist-oriented salvage activities of historic wrecks.
convention on wreck, n74
Odyssey Key
Ruling undermined profitability of the Odyssey
Werner, JD Candidate University of Miami Law, ’13 (Dave, Summer, “Piracy in the Courtroom: How
to Salvage $ 500 Million in Sunken Treasure Without Making a Cent” University of Miami Law Review, 67
U. Miami L. Rev. 1005, lexis//bueno)
B. Odyssey Marine: A Microcosm of the Deep-Sea Salvage Industry On May 18, 2007, Odyssey Marine Exploration, Inc., a publicly traded company, n145 issued a press release
announcing that the Black Swan wreck yielded over 500,000 silver and gold coins. n146 The date of the press release, not so coincidentally, is the date of Odyssey Marine's
Since the announcement of the Black Swan find,
Odyssey Marine has suffered through the weakened global economy, as have all corporations and industries,
but the lawsuits surrounding the Black Swan directly and distinctly impacted its share
price. Odyssey Marine's stock lost half of its market value over two days following the
magistrate judge issuing his [*1029] Report and Recommendation on June 3, 2009. n148 Unsurprisingly, given the
procedural history of this case, Odyssey Marine's share price has yet to recover; it had a fifty-two week share price range of $ 2.41
historic high stock price, a market close of $ 8.32 per share. n147
to $ 4.36 per share for April 11, 2012, to April 11, 2013. n149 While the decline and stagnation of Odyssey Marine's stock price cannot solely be tied to one lawsuit - the firm has
the courts' decisions impacted Odyssey Marine's future
business model as a deep-sea salvage company. n150
operated at a loss for years -
A2: Bidding Model Solves
Status quo wreck exploration consequently requires the bidding model
which is insufficient
Werner, JD Candidate University of Miami Law, ’13 (Dave, Summer, “Piracy in the Courtroom: How
to Salvage $ 500 Million in Sunken Treasure Without Making a Cent” University of Miami Law Review, 67
U. Miami L. Rev. 1005, lexis//bueno)
Odyssey Marine quickly took to heart the lessons
impressed upon it by its extensive and lengthy court battles over the Mercedes. Rather than face
1. The Expansion of Salvage for Hire and Contract Bidding
the trouble of seeking permission to salvage a wreck after its discovery, Odyssey Marine entered into contracts with the British government prior to finding and salvaging three
wrecks. n151 It entered into its first contract with the British government in 2010 to find the SS Gairsoppa, which it successfully located and salvaged. n152 Under the terms of
the contract, the United Kingdom retained title to the wreck, but Odyssey Marine was entitled to eighty percent of the proceeds from the wreck, even after recovering its costs.
n153 This business model allows Odyssey Marine to limit its exposure to the usurpation of its finds under the guise of sovereign immunity, thus saving the company the hassle of
undergoing litigious battles in the future. The contractual business of Odyssey Marine contrasts greatly with the exploratory efforts required by the Amsterdam Project. Without
contractually guaranteed salvage awards and rights, a firm that innocently finds and salvages the treasures from a wreck may be left without even recovering its costs, as Odyssey
Marine experienced with the Mercedes. n154 The business decision to embrace contract bidding reflects how [*1030] diminished profits have been accepted in exchange for safe
contract bidding
requires knowledge of the wreck that may be difficult, if not impossible, to obtain prior
to finding a wreck. n155 Unfortunately, contract bidding is not a workable premise for each
wreck. The Amsterdam Project began as an exploratory effort seeking thirty different shipwrecks. n156 Upon discovering the Black Swan site, Odyssey Marine had to
havens from lawsuits. While this contract bidding process seems like safe alternative to the method used in the Amsterdam Project,
dispel reports that the ship may have been two British ships, either the HMS Sussex or the Merchant Royal. n157 The Black Swan site consisted of artifacts, valuables, and debris
scattered over an area the size of several football fields, which further complicate the identification process. n158 Lastly, because the ship had exploded prior to sinking, the
The difficulties
surrounding the identification of the Mercedes evince how contract bidding - a viable business model
that Odyssey Marine has embraced - was untenable for the Amsterdam Project. Instead, salvage firms
seeking shipwrecks comparable to the Mercedes must identify the ship to determine if it
still enjoys the protections of sovereign immunity before claiming proper title to it. To forsake
presence of a wreck, not its identity, was confirmed only after three sets of eyes reviewed the feedback from the exploratory equipment. n159
entering into a contract prior to commencing a project manifests the financial and legal risks that a company is willing to assume for a project. For the Amsterdam Project, the
risk did not outweigh the reward. Odyssey Marine gained notoriety due to the high-profile nature of its case against Spain, but heightened exposure cannot recoup $ 500 million.
Port Terror Scenario
Salvage Key
Revitalizing the salvage industry allows interoperability with Navy salvage
efforts – solves maritime terrorist attacks, cost overruns, delays, and oil
spills
Matthews 12 – Commander, Director for Ocean Engineering, and Supervisor for Salvage and Diving
in the US Navy, (Mark, “Working Together: The Formation and Importance of the Marine Salvage
Industry Quality Partnership,” American Salvage Association, Summer 2012,
http://www.americansalvage.org/soundings/Summer2012.pdf)//JGold *edited to reject gendered
discourse
that commercial
salvage, pollution response and off-ship firefighting assets and capabilities play an ever
increasing and important role in U.S. Navy salvage doctrine. SUPSALV has always worked to
maintain a healthy balance of salvage capability between U.S. Navy salvage forces and
commercial salvors. I remain committed to that goal, but also recognize the challenge of maintaining that
balance in the face of a rapidly declining budget. Fleet salvage forces remain stretched
thin, supporting a myriad of tasking related to combat salvage. That combat salvage mission requires that those
As I begin my assignment as the U.S. Navy’s twenty-fifth Supervisor of Salvage and Diving, I recognize, as did my predecessors,
salvage forces train not only in salvage skills, but in all the skills associated with expeditionary support: namely to shoot, move, communicate and sustain in a hostile
Although we do not see a role for commercial salvage forces in hostile, nonpermissive
environments, there is absolutely a critical support role in national salvage related
incident response and in wartime, more protected semi-permissive and permissive environments. The capacity realities
of the uniformed salvage forces coupled with the federal budget realities bring into focus
the need to identify and institutionalize ways to combine U.S. Navy and commercial
salvage forces for both peacetime and wartime salvage response and to do so in a fiscally responsible way. In a
environment.
continuing effort to identify and institutionalize those areas of mutual response, the U.S. Navy Supervisor of Salvage (SUPSALV) and the American Salvage Association (ASA)
are moving forward to sign a memorandum of understanding for the establishment of a Marine Salvage Industry Cooperative Partnership. As an association of professional
salvors created to provide an identity and assist in professionalizing the United States marine salvage and firefighting response capability, the ASA is a logical partnership choice
The quality partnership we are advancing will promote safety, environmental
stewardship and security within the marine salvage industry. Together SUPSALV and
the ASA will achieve these goals by maintaining a productive dialogue surrounding
current issues relating to marine salvage operations, cooperating to ensure compliance
with regulations and other applicable laws and cooperating to identify mutual training
competencies and promote the interests of the Navy and American public in the marine
salvage industry. The Transportation Research Board of the National Academies National Salvage Response Workshop, conducted in 2008, focused on a worst
for SUPSALV.
case salvage scenario and identified the need to muster the combined capabilities of the American salvage industry and the U.S. Navy to respond to a marine salvage incident of
several potential response delay
causes were identified and U.S. Navy salvage teams and salvage equipment were
identified as a valuable resource for marine casualties inflicted by terrorist acts.
Recommendations were made to create direct interface links between the U.S. Navy and
the salvage industry to enhance communications, share knowledge, ascertain equipment
compatibility and pre-establish mutual aid protocols in support of an integrated
response. Similarly, it was recognized that emergency mustering of nationwide resources during a
marine salvage incident of national significance would result in wasteful use of
contracting funds and associated delays and the study further recommended that the Navy salvage leadership liaise with the salvage
national significance as defined in the National Response Framework. During the course of the study,
industry to develop proposals to streamline contracting procedures. SUPSALV is delegated authority under 10 USC 7361, the Salvage Facilities Act, to provide, by contract or
otherwise, necessary salvage facilities for public and private vessels. It is therefore appropriate and prudent that SUPSALV proceed with this memorandum of understanding
with the ASA for the establishment of a Marine Salvage Industry Quality Partnership. This Summer SUPSALV will partner with the U.S. Coast Guard District 17, United States
northern Command (USNORTHCOM) and Joint Task Force Alaska for Operations ARCTIC SHIELD 12, ARDENT SENTRY 12 and ARCTIC EDGE 12 where SUPSALV will
The goals of these exercises are to validate
integrated oil spill response capabilities and demonstrate the U.S. government’s
readiness to respond to an Arctic oil spill of national significance. For SUPSALV this will include overland
execute our Oil Spill Response Operations Prep Exercise on the Alaskan North Slope.
movement of oil spill response equipment from our Emergency Ship Salvage Material (ESSM) Base in Fort Richardson, AK to Prudhoe Bay followed by barge transport to and
In the pollution response arena, these exercise opportunities have been
very well institutionalized. Exploring similar opportunities for salvage to include
industry partners needs to be accomplished. Developing compatibility of our equipment,
our processes and our procedures to undertake challenging salvage scenarios such as harbor
clearance, emergency lightering and refloating will improve our national response posture to respond to natural
and man [humyn]-made maritime disasters. In my view, institutionalizing similar exercises in the future for salvage among federal, state
deployment off Barrow, AK.
and industry partners would be the successful culmination of the Marine Salvage Industry Quality Partnership. I had the pleasure of meeting many ASA members at the Spring
meeting in Connecticut. I look forward to meeting and working with many more of you during my assignment at SUPSALV
Impact – Economy/Trade
A terrorist attack DESTROYS the global economy and trade
Flynn 6 (Stephen, President of the Center for National Policy and CISAC Consulting Professor at
Stanford, “Port Security Is Still a House of Cards”, 3/9, http://www.cfr.org/port-security/continuedvulnerability-global-maritime-transportation-system/p10074)
It is just a question of time before terrorists with potentially more destructive weapons breach
the superficial security measures that have been put in place to protect the ports, the ships, and the millions of
intermodal containers that link global producers to consumers. Should that breach involve a “dirty bomb,” the United
States and other states will likely raise the port security alert system to its highest
level while investigators sort out what happened and establish whether or not a follow-on attack is likely.
Multiple port closures in the United States and elsewhere would quickly throw this system into chaos.
Container ships already destined for the United States would be stuck in anchorages unable to unload their
cargo. Ships would be delayed in overseas loading ports as the maritime industry and their customers try to sort out
how to redirect cargo. Marine terminals would have to close their gates to all incoming containers since they
would have no place to store them. Trucks and trains would be stuck outside the terminal with no place to go. If they are carrying
perishable goods, the cargo would perish. Also, the trucks and trains would not be able to re-circulate to pick up new shipments
until they could get rid of the old ones.
place to go .
Goods for export would pile at factory loading docks with no
Imports to support “just-in-time” deliveries would be no shows and soon factories would be idled and retailers’
shelves would go bare. In short, acatastrophic terrorist
event involving the intermodal transportation system could well
lead to unprecedented disruption to the global trade system. In economic terms, the costs
associated with managing the attack’s aftermath will substantially dwarf the actual destruction from the
terrorist event itself. Those costs will be borne internationally which is why transportation and trade security
must be not only a U.S. Homeland Security priority, but an urgent global priority.
A port attack spills over to the global economy
Schanzer and Eyerman 10 (From the IBM Center for the Business of Government, David H., Associate Professor
Sanford School of Public Policy at Duke University, Joe, Senior Research Methodologist Director, Health Security Program RTI
International, “Strategic Risk Management in Government: A Look at Homeland Security”, Homeland Security Council; 3/31,
http://www.homelandcouncil.org/pdfs/digital_library_pdfs/ibmstrategicriskmanagementingovt.pdf)
Direct Attack on a U.S. ¶ Seaport¶ finally, terrorists could also attack u.s. seaports ¶ directly. Such an attack
would result in loss of lives, ¶ property, and business; affect the operations of harbors
and the transportation infrastructure(bridges, ¶ railroads, and highways) within and beyond the port¶
limits; and disrupt the free flow of trade. ¶ for instance, imagine the consequences of a successful attack on twin ports
Scenario Three:
of Los Angeles and long ¶ Beach. these two ports handle percent of the ¶ total container traffic flowing in and out of the ¶ united states.¶ If a terrorist
it would have an immediate spillover effect, ¶ causing gridlock in Hong Kong, Singapore,
¶ Rotterdam, and every other major trading port reliant on the world’s biggest economy.Key
U.S. ¶ imports, starting with oil, would become scarce¶ almost immediately.Factories
would become idle ¶ for lack of raw materials or spare parts. Places like ¶ Hawaii, which depend on shipping
attack shut down that ¶ traffic,
for almost every ¶ consumer need, would quickly run out of food.
The U.S. marine transportation system is the lifeblood of the global
economy – an attack guarantees total economic collapse
Allen 8 (Admiral Thad, U.S. Coast Guard, “Friend or Foe? Tough to Tell”, U.S. Naval Institute,
www.pacnwest.org/docs/friendorfoe.pdf)
More than 80 percent of the
world’s trade is transported by merchant vessels.2 The United States Marine
Transportation System (MTS), a complex combination of waterways, ports, terminals, inter-modal connections, vessels, people, and support services that
intertwines the public and private sectors is the lifeblood of our national economy.Since the United States is
the world’s leading maritime trading nation, accounting for nearly 20 percent of the
annual ocean-borne overseas trade, our MTS also fuels the global economy .3 As the MTS has
Some Americans take for granted how the shelves remain stocked at Target, Wal-Mart, and their local grocery store.
grown in global importance, its inherent vulnerabilities have also increased. Nearly 700 ships arrive in U.S. ports each day, and nearly 8,000 foreign flag ships, manned by
200,000 foreign mariners, enter U.S. ports every year.4 Annually, the nation’s 326 ports handle more than $700 billion in merchandise while the cruise line industry and its
Overall, the MTS supports a global chain of economic
activity that contributes more than $700 billion to our national economy each year.6 This
enormous level of activity results in the MTS operating within extremely tight
tolerances, and with limited ability to deal with disruptions.When the port of Los Angeles/Long Beach closed because
passengers contribute another $35 billion in spending.5
of a labor dispute in 2003, the cost to the American economy was approximately $1 billion per day for the first five days with the price tag rising sharply thereafter.7 To
safeguard the MTS, the Coast Guard has worked with other Department of Homeland Security (DHS) components to produce the Small Vessel Security Strategy (SVSS). The
Small Vessel Security Strategy (SVSS) The SVSS was built on prior research efforts and combined with private sector input from the 256 attendees at the June 2007 National
Small Vessel Security Summit held in Arlington, Virginia. It uses a risk-based approach by first considering the vulnerabilities, likelihood, and consequences of a small vessel
attack in a specific port. Once the risk is determined, appropriate resources can be allocated and security measures can be implemented. The SVSS engenders a spirit of
international as well as public and private sector cooperation. It also creates a framework to enhance our maritime security posture and increases our level of awareness to that
already achieved by much of the international community. Immediately after 9/11, the International Maritime Organization (IMO) focused on regulating cargo containers and
enhancing the security of large commercial vessels (over 300 gross tons on international voyages) and port facilities. To meet this challenge, the United States was a major
proponent of the International Ship and Port Facility Security (ISPS) Code that revolutionized maritime security protocols. In 2004 148 nations approved the ISPS Code.
Recognizing that a security gap still existed within the maritime domain, our nation, in conjunction with representatives from the United Kingdom and Japan, presented a small
vessel threat briefing to the IMO’s Maritime Safety Committee (MSC) in 2007. This briefing addressed vessels not covered by the ISPS. To ensure a robust analysis, the briefing
specifically included the private-sector input collected during the Small Vessel Security Summit. The committee appointed an international Correspondence Group, comprised of
38 voluntary member governments and 8 nongovernmental associations, to study small vessel security and submit proposed guidelines. The unprecedented number of
participants underscored the seriousness of global concern. The Coast Guard has been an integral part of the Correspondence Group, and we expect the guidelines to be adopted
at the MSC’s next session in November 2008. Even though the guidelines are voluntary, they reflect international consensus on small vessel security practices. Nations that
follow the guidelines raise their status as favorable trading partners, so it will encourage self- correcting behavior. Once the guidelines are approved, the Coast Guard will work
with DHS to incorporate them into an implementation plan for the United States. Not content to wait, some nations have already implemented their own safeguards. Singapore,
home of one of the world’s busiest ports, is adjacent to two of the most heavily trafficked waterways in the world; the Singapore and Malacca straits. More than 1,000 vessels per
day transit these two natural shipping choke points, making them both essential to the global supply chain and a nearpefect setting for a small vessel attack. To reduce that
threat, Singapore has required all non-SOLAS-covered vessels within its port to carry a low- cost transponder that transmits the vessel’s identification and intended movement.
By combining AIS data with information gleaned from the small vessel transponders, Singapore estimates it will be able to monitor 98 percent of the vessels within its
waterways.8 While this type of monitoring heightens privacy concerns, the added situational awareness allows law enforcement agencies to identify high-risk vessels and detect
anomalies in shipping patterns, two key aspects of a risk-based approach to maritime security. Based on lessons from previous incidents and security efforts throughout the
international community, the SVSS addresses four key risk scenarios from small vessels: • Domestic use of WBIEDs; • Conveyance for smuggling weapons (including WMDs);
Conveyance for smuggling terrorists; and • Waterborne platform for conducting a stand-off attack, e.g. man-portable air-defense system (ManPADS). More Eyes and Ears A
A WMD would have obvious
catastrophic implications but even a garage-built bomb or a small-arms attack could
force a port to shut down and have long-term economic and security ramifications. A small
small vessel attack can range from a simple improvised explosive device to a weapon of mass destruction.
vessel could also be used to smuggle terrorists into the country. In 2007, approximately 5,000 illegal immigrants success- fully arrived on our shores and most were transported
via small craft. There are a variety of threats from small vessels to our security, so we need a fresh approach to risk mitigation. Our Economic Lifeblood We rely on our Marine
An attack on a vessel in one of our
ports, such as Los Angeles/Long Beach, could result in the port shutting down and spreading anxiety
throughout the global financial marketplace.
Transportation System to keep the shelves stocked at Target, Wal-Mart, and our local grocery store.
Port attack collapses US economy
Schoeberl, Executive at National Counterterrorism Center, ’13 (Richard, April 10, “Shipping
Containers & Hidden Dangers” Domestic Preparedness,
http://www.domesticpreparedness.com/infrastructure/Transportation/Shipping_Containers_%26_Hid
den_Dangers/)
American seaports are not only the maritime doorway to the nation but also a crucial link in the U.S. two-way trade
with other nations. Today, billions of dollars’ worth of unchecked goods move in and out of
U.S. international seaports every month, making ports vulnerable to disruption from both
terrorist attacks and natural disasters. In the United States, the Customs and Border Patrol (CBP), the U.S. Coast Guard, the Department of Agriculture, port
authorities’ own police forces, and many other local, state, and federal government agencies diligently work together to protect the nation’s seaports from myriad threats.
the possibility of a terrorist attack on a U.S. seaport is certainly
plausible – both with the potential to cause immediate devastation to the local community
and to cripple the already delicate global economy. Busy Ports The United States currently is served by more
Nuclear proliferation is a viable threat and
than 360 commercial ports – which, according to the U.S. Coast Guard, provide nearly 3,200 handling facilities for both cargo and passengers. Additionally, U.S. seaports
process more than 2 billion tons of import/export freight per annum. In 2009 alone, according to the U.S. Department of Transportation, nearly 10 million ocean-borne cargo
containers entered the United States through its seaports. Los Angeles and Long Beach, California, are unequivocally the busiest North American container ports, trailed by the
Port of New York and New Jersey. In 2011, the Port of Long Beach handled more than 6 million containers and the Port of New York and New Jersey handled 5.5 million – both
container totals are measured in TEUs (20-foot equivalent units). Cargo containers are an important component of the global supply chain – the flow of goods from
manufacturers to retailers. Unfortunately, the mass influx of containers provides innumerable opportunities for would-be terrorists to smuggle and detonate a weapon of mass
destruction (WMD) on U.S. soil. Although terrorism remains a critical security focus at seaports, it is actually rated by U.S. Customs as a lower risk than other threats – e.g.,
drug smuggling, human trafficking, weapons trafficking, and trade and import safety violations – that have the potential to compromise the nation’s supply chain. Consequences
the economic costs of a maritime attack
can be overwhelming. During a time when workforces face layoffs, impending unemployment extensions, and foreclosures, any political or
economic factor that impedes the flow of trade would not only affect the seaports
themselves but also interrupt the supply of goods. The widespread effect would be felt
throughout the country, and in many other nations as well. Rear Admiral Paul Zukunft, the Coast Guard’s Assistant
Commandant for Maritime Security, told the House Subcommittee on Border and Maritime Security last year that, “ Considering that high concentrations of our
population live in and around port areas, and 95 percent of our international trade is done via the sea, the
consequences of any attack or disruption on our maritime transportation system are
potentially severe.” Section 1701 of the 9/11 Commission Act of 2007 requires that all maritime cargo containers bound for the United States must, as of 12 July
of an Attack Apart from the potential human costs that may result from a lack of port security,
2012, be scanned by non-intrusive imaging equipment and radiation detection technology before being loaded on ships. Reinforcing efforts to counter the looming terrorist
threat at U.S. ports is the fact that then-candidate Barack Obama promised during his 2008 presidential campaign to “Develop technology that can detect radiation and work
with the maritime transportation industry to deploy this technology to maximize security without causing economic disruption.”
Collapses US economy
Haveman and Shatz, Research Fellows at Public Policy Institute of California, ‘6 (Jon and
Howard, “Protecting the Nation’s Seaports: Balancing Security and Cost” Public Policy Institute of
California, http://www.ppic.org/content/pubs/report/R_606JHR.pdf//bueno)
ports themselves present attractive targets for terrorists. Ports are a
significant potential choke point for an enormous amount of economic activity. The 361
U.S. seaports make an immense contribution to U.S. trade and the U.S. economy. They
move about 80 percent of all U.S. international trade by weight, and about 95 percent of
all U.S. overseas trade, excluding trade with Mexico and Canada. By value, $807 billion worth of goods flowed
through the seaports in 2003, about 41 percent of all U.S. international goods trade. This
value is higher than the value of trade moved by all modes in any single leading industrial country except Germany. Temporarily shutting
down a major U.S. port could impose significant economic costs throughout
not only the United States but also the world. Al-Qaeda leader Osama bin Laden has labeled the
destruction of the U.S. economy as one of his goals: “If their economy is finished, they will become too busy to enslave
oppressed people. It is very important to concentrate on hitting the U.S. economy with every available means.”1 The potential for a port closure
to disrupt economic activity has been made clear several times in recent years. In 2002, the closure
The second concern is that
of all West Coast ports was clearly responsible for some element of economic disruption, with estimates of lost activity ranging from the hundreds of millions of dollars per day
to several billion. In September 2005, Hurricane Katrina further served to reinforce the fact that ports are an integral feature of our goods distribution system. The closure of the
Port of New Orleans and many smaller ports along the Gulf Coast is likely to have adversely affected U.S. grain exports, although at the time of this writing, cost estimates were
not available. Hurricane Katrina further illustrated the effects of disruptions to the flow of oil, gasoline, and natural gas to the nation’s economy. That a natural disaster can
an attack on oil terminals at U.S. ports could be both desirable and
effective for terrorists Beyond their economic role, the largest seaports are also near
major population centers, so the use of a weapon of mass destruction at a port could
injure or kill thousands of people. In addition, a weapon such as a nuclear device could cause
vast environmental and social disruption and destroy important non-port infrastructure
in these urban areas such as airports and highway networks. How much risk is there for either of these concerns?
U.S. law enforcement, academic, and business analysts believe that although the likelihood of an ocean container being used in a terrorist attack is low, the
vulnerability of the maritime transportation system is extremely high, and the
consequence of a security breach, such as the smuggling of a weapon of mass destruction into the country, would be
disastrous.2 Others take issue with the notion that the likelihood of a container attack is low, believing that an increase in global
produce such a result implies that
maritime terrorism in 2004 and the reputed appointment late that year of a maritime
specialist as head of al-Qaeda in Saudi Arabia portended a significant maritime attack.3
Ports k2 trade
TRB 4 – Transportation Research Board, sector of the National Academy of Sciences, “a private,
nonprofit, self-perpetuating society of distinguished scholars engaged in scientific and engineering
research, dedicated to the furtherance of science and technology and to their use for the general welfare.
The Academy has a mandate that requires it to advise the federal government on scientific and technical
matters,” (“Marine Salvage Capabilities Responding to Terrorist Attacks in U.S. Ports—Actions to
Improve Readiness,” The National Academies,
http://onlinepubs.trb.org/onlinepubs/conf/reports/cp_30.pdf)//JGold
The United States is a world trade leader with an economy increasingly dependent on
ocean transportation and the vitality of the nation’s ports and waterways. U.S. ports and
waterways, however, are remarkably diverse in terms of the vessel traffic served, the types of services
provided, geography, and environmental conditions. Because ports must be able to provide
efficient, rapid turnaround capabilities to accommodate not only expanding trade but
also the increasing size and speed of ocean-going ships, it is critical that ports and
waterways be kept open to provide these services on a continuous, uninterrupted basis.
If a terrorist-related or other incident results in the blockage of a harbor or waterway,
emergency towing vessels, salvage vessels, dredging equipment, and salvage personnel
must be available to respond.
A2: No Port Terror
Nuclear terror attack on ports likely – subsequent port closures wreck the
economy – aff solves
Hooper 7 - Captain, U.S. Navy; currently serving as the Navy’s Supervisor of Salvage & Diving; B.S.,
Loyola College (Baltimore); MSME, Naval Postgraduate School; extensive experience in program
management, including major command and prior tours in maritime salvage, (Richard, “THE NEED FOR
A NEW NATIONAL MARITIME SALVAGE POLICY IN VIEW OF THE TERRORIST THREAT &
HURRICANE LESSONS LEARNED,” Transportation Research Board, Spring 2007,
http://onlinepubs.trb.org/onlinepubs/archive/MarineBoard/Spring07/Salvage.pdf)//JGold
The impact of strategic terrorist attacks on the U.S. marine transportation system could
clearly be even more devastating than the demonstrated effects of random hurricanes.
Weapons of mass destruction inserted into our maritime infrastructure by a terrorist
infiltrated container ship, cruise ship or VLCC could yield vessel strandings or wrecks
blocking channels or fouling port facilities that would effectively close ports. Even
localized terrorist attacks could blockade access to strategic channels and ports for
weeks or months. Near-simultaneous attacks in several regional ports would [devastate]
paralyze shipping and U. S. economic trade. If another ad hoc national maritime salvage
response – similar to that used after Katrina/Rita – were employed in the aftermath of a
terrorist attack on major ports, the recovery time would be unacceptably long, and the
effects on the economy would be an exponential function of the time required.
SQ insufficient to respond to an attack
TRB 4 – Transportation Research Board, sector of the National Academy of Sciences, “a private,
nonprofit, self-perpetuating society of distinguished scholars engaged in scientific and engineering
research, dedicated to the furtherance of science and technology and to their use for the general welfare.
The Academy has a mandate that requires it to advise the federal government on scientific and technical
matters,” (“Marine Salvage Capabilities Responding to Terrorist Attacks in U.S. Ports—Actions to
Improve Readiness,” The National Academies,
http://onlinepubs.trb.org/onlinepubs/conf/reports/cp_30.pdf)//JGold
The workshop discussions and the results of each breakout group’s consideration of the questions posed
focused on two general areas of concern regarding capabilities—physical capabilities and organizational
capabilities. Although discussions about responses to hypothetical scenarios were not detailed enough
to highlight the need to obtain or maintain specific physical assets, they did provide an overall sense
that, although U.S. commercial salvage capabilities are significant, more work is
required to define the physical assets and organizational competency necessary to meet
a terrorist threat. In reviewing the workshop results, the committee concludes that further
work in four areas is necessary to improve the nation’s readiness posture regarding marine
salvage capabilities: (a) maintaining an inventory and evaluation of available physical
salvage assets, (b) conducting tabletop exercises to test physical and organizational
readiness posture, (c) improving salvage expertise and input to the planning and
response networks, and (d) conducting further study of related legal, regulatory, and
policy issues. The committee’s recommended next steps in these four areas are described in more detail
in the following sections.
Other Scenarios
Impact – Subs
The plan incentivizes wreck recovery – spurs new deep-sea tech
Curfman 8 - J.D. Candidate (2009), Washington University School of Law; B.A. Economics (2005),
Duke University (David, “NOTE: THAR BE TREASURE HERE: RIGHTS TO ANCIENT SHIPWRECKS IN
INTERNATIONAL WATERS - A NEW POLICY REGIME,” Washington University Law Review, 2008)
//JG
the issue of ownership of wrecks on
the high seas has achieved increasing prominence. The present conflicts among finders/salvors, owners,
governments, preservationists, and cultural property advocates show the inadequacy of the current laws governing shipwrecks in
international waters. The case of Odyssey Marine Exploration, Inc. v. Unidentified, Shipwrecked Vessel n182 demonstrates the need
for reform of this antiquated area of law.¶ In furtherance of such reform, this Note suggests an amendment
to the United Nations Convention on the Law of the Sea that would (1) relieve the need
for litigation in order to determine ownership to ancient wrecks, (2) incentivize the
discovery and retrieval of ancient wrecks, and (3) provide a mechanism for the
repatriation of cultural property. By achieving these goals, such an amendment would
promote the discovery and retrieval of ancient shipwrecks on the high seas, spur the
development of more sophisticated deep-sea technologies, ensure scientific access to
archaeological material, preserve historic value, and promote cultural property. These
benefits would come at the cost of clarifying the muddy waters of salvage and finds laws.
With the advent of more sophisticated technology for the search and recovery of deep-sea shipwrecks,
Treasure hunters would be able to keep their coins, while archaeologists and preservationists would be able to study their artifacts without having to privately acquire them from
For minimal cost, nations have an opportunity to clarify the state of
shipwreck law so as to benefit all interested parties.
disparate collections.
Deep sea tech is key to develop advanced submarines.
Stuart 11 - Associate at Larzelere Picou Wells Simpson Lonero, LLC, (“Cory,” THE WAKE OF
DISCOVERY-A PRIMER ON LEGAL, HISTORICAL, AND PRACTICAL SHIPWRECK SALVAGE
DYNAMICS,” HeinOnline, March 2011)
Technology is one key topic for which the media can serve as a useful tool to buoy the understanding of one who is interested in
shipwreck salvage. Maritime jurisprudence in this area often neglects to consider how underwater
archaeology has flourished in the last half century, leaving a critical piece of the larger puzzle untouched. Instead, case
law focuses on the facts leading to a discovery, and the relevant law that is applied in each particular case. Incredible technological
advances have shed light on nautical geographies once cast aside as black holes of
discovery. Indeed, "[for much of history the deep ocean has been unexplored and unexplorable ... and ships that sank far from land were considered lost forever."l 3'
Those are the words of aforementioned Richard Robol, who served as counsel for the Columbus-Group in the S.S. Central America litigation. Robol also articulates a basic
window of the last 40 years that has seen a tremendous growth in the types of technologies that allow shipwreck discoverers to thrive.132 There are a plethora of metaphorical
fisherman in this rodeo, and all surely benefit from the use of contemporary equipment. Namely, "federal agencies, coastal states, foreign governments, the United Nations,
private salvagers, insurance companies, the tourist industry, sport divers, environmentalists, fishing interests, archaeologists, and historians" each have a tangible interest in
wreck salvage. 33 As technology continues to progress and evolve, each of these players will have greater access to the furthest reaches of the underwater globe. Some of
the
most prevalent modem technologies that explorers now implement are side scan sonar devices and
miniature, underwater submarines .134 Wide area sonar can allow an underwater
archaeologist to explore vast stretches of the sea without focusing specifically on small, detailed plots.13 5 Such
technology obviously provides for economies of scale and efficiencies in searching deep-sea
bottoms. The miniature submarines that Richard Robol describes are used to capture more minute detail
once a smaller area has been pinpointed. These technologies were substantially unavailable for many centuries, and this type
of equipment can facilitate an underwater search that literally stretches as deep as several
miles beneath the surface.' 3 6 Peter Hess is an attorney and a world-renowned expert in this field. Hess has served as an advocate for diverse parties in
shipwreck litigation, including salvors, governments, and public divers. Notably, Hess served as counsel for the plaintiff in the aforementioned Andrea Doria litigation.'37 He is
also a recreational diver and an amateur underwater archaeologist. 3 8 His expertise is profound, and his experience in navigating salvage litigation is well-respected throughout
the maritime community. Hess has been the subject of multiple media interviews over the years, as his acumen for representing parties in these types of cases lends a unique
perspective to any news piece. One particular piece that appeared in a 1999 edition of the Newark Star-Ledger is specifically insightful to this topic. Hess indicates that we are
currently in the midst of "a great age of underwater discovery" as "the technology exists to locate an object anywhere on the earth's surface."' 39 This claim may appear to be a
staggering exaggeration at first blush, but an understanding of the progression of modern technology quells any such concerns-an understanding that Hess clearly possesses.
Hess credits the evolution of various contemporary devices with the blossoming of shipwreck discovery. In doing so, he recognizes similar devices detailed above by Richard
Robol, although perhaps lending more perspective to their scope. Hess posits that: Remote sensing devices can provide acoustic images of the outline of a ship buried in the sea
bottom. Global positioning systems can locate wrecks within a meter. Sophisticated sonar can explore up to 100 square miles a day of ocean bottom, detecting small items the
size of wine bottles.14 0 It is interesting and significant that someone who is learned in the law can also have such an erudite understanding of the practical know-how that
accompanies underwater discovery. Through media interviews with various informed attorneys (a small clip of which are referenced herein), a reader is provided with a
wellrounded acquaintance with the various technologies that lead to vessel discovery. It is these discoveries that often lead to contentious litigation regarding what property
belongs to whom, and in what proportions.
Submarines are crucial to American power projection and command of the
sea.
Holmes 7-4-14 (James, Professor of Strategy at the Naval War College and coauthor of Red Star over
the Pacific, “Hail to the Deep: A Strategy for Submarines,” The National Interest,
nationalinterest.org/feature/hail-the-deep-strategy-submarines-10750?page=show)
IT’S EASY to forget the virtues of submarines, which lurk beneath not only the waters but also the consciousness of most
Americans. They aren’t as iconic as fighter jets or as visceral as tanks. But they can deny a stronger enemy navy control of
important waters. Afterward they can exercise command of the sea, blockading or
projecting power onto enemy shores with impunity. These elusive warships, in other words,
pack an outsized punch. Just ask Eugene Fluckey. Nicknamed “Lucky Fluckey,” the World War II submarine commander sent the most enemy tonnage
to the ocean’s bottom of any skipper in the Pacific. Sinking Japanese tankers, freighters and other merchantmen dismembered a Japanese Empire reliant on sea transport. And
raiding shipping was an option of first resort for Washington. U.S. Pacific Fleet submarines were able to start attacking Japanese shipping while American battleships were still
sea denial.” It’s a
strategy for hindering or preventing stronger adversaries from using certain nautical
expanses. Submarine operations spread progressively westward as the navy seized Pacific islands where forward bases could be built. Nearby bases let U.S.
submariners establish a near-constant presence in Asian seas, sinking even more merchant shipping while
pummeling the Imperial Japanese Navy from below. As the tide turned in the Pacific, undersea warfare made an indispensable
contribution to American “command of the sea,” meaning near-total control of
important sea areas. And late in the war, Fluckey’s boat USS Barb took the fight directly to Japan, engaging in gun duels against Japanese shore sites. A
burning in Pearl Harbor—long before the U.S. Navy surface fleet penetrated western Pacific waters. That’s what naval specialists call “
landing party even went ashore to blow up a train. Such theatrics aside, Harvard professor Stephen Rosen maintains that a submarine blockade of Japan could have compelled
Tokyo to surrender—even had President Harry Truman declined to order the atomic bombings of Hiroshima and Nagasaki. That’s high praise for these humble-looking ships of
war. Sea denial, sea command, the exploitation of command:
submarine operations span the range of naval missions. Yet
despite a century’s proof of submarines’ efficacy, from World War I in the Atlantic to the competition with China today, the classics of sea-power theory—the closest thing
seafarers have to a how-to manual of naval combat—are puzzlingly silent on how to employ them in wartime or peacetime. The classics concentrate overwhelmingly on surface
warfare, scanting undersea combat. It is high time to bring submarines into the canon.
Plan increases tech development
Stuart 11 - Associate at Larzelere Picou Wells Simpson Lonero, LLC, (“Cory,” THE WAKE OF
DISCOVERY-A PRIMER ON LEGAL, HISTORICAL, AND PRACTICAL SHIPWRECK SALVAGE
DYNAMICS,” HeinOnline, March 2011) //JGold
Technology is one key topic for which the media can serve as a useful tool to buoy the understanding of one who is interested in
shipwreck salvage. Maritime jurisprudence in this area often neglects to consider how
underwater archaeology has flourished in the last half century, leaving a critical piece of the larger puzzle
untouched. Instead, case law focuses on the facts leading to a discovery, and the relevant law that is applied in each particular case. Incredible
technological advances have shed light on nautical geographies once cast aside as black
holes of discovery. Indeed, "[for much of history the deep ocean has been unexplored and unexplorable ... and ships that sank far from land were considered
lost forever."l 3' Those are the words of aforementioned Richard Robol, who served as counsel for the Columbus-Group in the S.S. Central America litigation. Robol also
the last 40 years that has seen a tremendous growth in the types of
technologies that allow shipwreck discoverers to thrive.132 There are a plethora of metaphorical fisherman in this rodeo,
articulates a basic window of
federal agencies, coastal states, foreign
governments, the United Nations, private salvagers, insurance companies, the tourist
industry, sport divers, environmentalists, fishing interests, archaeologists, and
historians" each have a tangible interest in wreck salvage. 33 As technology continues to
progress and evolve, each of these players will have greater access to the furthest reaches
of the underwater globe. Some of the most prevalent modem technologies that explorers now implement are side scan sonar devices and miniature,
and all surely benefit from the use of contemporary equipment. Namely, "
underwater submarines.134 Wide area sonar can allow an underwater archaeologist to explore vast stretches of the sea without focusing specifically on small, detailed plots.13 5
technology obviously provides for economies of scale and efficiencies in searching
deep-sea bottoms. The miniature submarines that Richard Robol describes are used to capture more minute detail once a smaller area has been pinpointed.
These technologies were substantially unavailable for many centuries, and this type of equipment can facilitate an underwater
search that literally stretches as deep as several miles beneath the surface.' 3 6 Peter Hess is an attorney
Such
and a world-renowned expert in this field. Hess has served as an advocate for diverse parties in shipwreck litigation, including salvors, governments, and public divers. Notably,
Hess served as counsel for the plaintiff in the aforementioned Andrea Doria litigation.'37 He is also a recreational diver and an amateur underwater archaeologist. 3 8 His
expertise is profound, and his experience in navigating salvage litigation is well-respected throughout the maritime community. Hess has been the subject of multiple media
interviews over the years, as his acumen for representing parties in these types of cases lends a unique perspective to any news piece. One particular piece that appeared in a
Hess indicates that we are currently in the midst
of "a great age of underwater discovery" as "the technology exists to locate an object
anywhere on the earth's surface."' 39 This claim may appear to be a staggering exaggeration at first blush, but an understanding of the
progression of modern technology quells any such concerns-an understanding that Hess clearly possesses. Hess credits the evolution of
various contemporary devices with the blossoming of shipwreck discovery .
1999 edition of the Newark Star-Ledger is specifically insightful to this topic.
In doing so, he recognizes similar devices detailed above by Richard Robol, although perhaps lending more perspective to their scope. Hess posits that: Remote sensing devices
can provide acoustic images of the outline of a ship buried in the sea bottom. Global positioning systems can locate wrecks within a meter. Sophisticated sonar can explore up to
100 square miles a day of ocean bottom, detecting small items the size of wine bottles.14 0 It is interesting and significant that someone who is learned in the law can also have
such an erudite understanding of the practical know-how that accompanies underwater discovery. Through media interviews with various informed attorneys (a small clip of
It is these
discoveries that often lead to contentious litigation regarding what property belongs to
whom, and in what proportions.
which are referenced herein), a reader is provided with a wellrounded acquaintance with the various technologies that lead to vessel discovery.
Impact – Enviro
Domestic salvage key to avoid environmental catastrophes – past events
prove poor response is devastating
Hooper 7 - Captain, U.S. Navy; currently serving as the Navy’s Supervisor of Salvage & Diving; B.S.,
Loyola College (Baltimore); MSME, Naval Postgraduate School; extensive experience in program
management, including major command and prior tours in maritime salvage, (Richard, “THE NEED FOR
A NEW NATIONAL MARITIME SALVAGE POLICY IN VIEW OF THE TERRORIST THREAT &
HURRICANE LESSONS LEARNED,” Transportation Research Board, Spring 2007,
http://onlinepubs.trb.org/onlinepubs/archive/MarineBoard/Spring07/Salvage.pdf)//JGold
The lack of national salvage capacity is also illustrated by the U.S. Navy’s increased reliance on
foreign flag vessels to safely and effectively accomplish its salvage missions. Consider the Navy recovery operations involving the 1999 Egypt Air crash off Rhode
Island, which employed the foreign flagged M/V Smit Pioneer, and the 2001 U. S. Navy recovery operations of the Japanese fishing vessel Ehime Maru off Oahu, Hawaii, which
Even more remarkable was the U.S.
Navy’s dependency on foreign flagged heavy lift ships to salvage the battle damaged USS
Cole and USS Samuel B. Roberts. 3 Rev 5 Perhaps at no time was the lack of domestic
salvage capacity more vividly highlighted than in the inadequate response actions taken
after the February 1999 stranding of the 640-foot M/V New Carissa on the Oregon coast. “There were only two salvage
vessels on the [U.S.] Pacific coast capable of refloating such a large grounded ship, and neither one was readily available to respond in this case.”19 Due to the lack
of salvage capacity, the New Carissa was driven further towards shore and it broke
apart, polluting the Oregon coast in the vicinity of Coos Bay.
required employing foreign flagged vessels M/V Rockwater II and the M/V Crowley 450-10.
Culture Advantage
Shipwrecks Key
Shipwrecks uniquely key to archaeology
Scrimo, 2000– J.D., law student from the University of Maine (Jeffrey T., “COMMENT: Raising the
Dead: Improving the Recovery and Management of Historic Shipwrecks”, 5 Ocean & Coastal L.J. 271,
Lexis-Nexis, NG)
B. Preserving Historic Vessels
One of the great expressions of past culture is the oceangoing vessel. n14 For
thousands of years, the oceangoing vessel was the ultimate manifestation of pre-industrial civilized society, n15 and was the most efficient and manageable means to transport
people and materials over great distances. n16 From the Greek galley to the British ship of the line to the modern supertanker and nuclear equipped submarine, the oceangoing
vessel has always connected cultures and driven world events. n17 Throughout the thousands of years of ocean travel, n18 many thousands of oceangoing vessels have been lost
to the tyranny of war, the onslaught of weather, and plain old bad luck and poor navigation. n19 In the days before accurate navigation systems and undersea exploration
technology, n20 most [*275] sunken vessels were considered to be lost forever. If anything remained of the vessel, it would often only be a few lucky survivors or some cargo
washed ashore. As underwater technology finally opens long lost wrecks to exploration, however, it is that quality of a shipwreck's isolation that most excites archaeologists. n21
Wrecks are particularly helpful to archaeologists because they can often be dated within
a relatively narrow time frame. n22 Because it can be assumed that sailors did not spend their last moments attempting to sterilize their
belongings to obtain a favorable review in later historical interpretation, a shipwreck is a time capsule of a specific moment
in time. n23 In theory, an archaeologist views an exact slice-of-life as it was lived at a
known time in history when she peers into an undisturbed wreck. n24 Shipwrecks are also
valuable for the information that they can tell maritime historians about the
construction of a culture's vessels. n25 During the age of sailing, the construction of a ship was an occupation closed off and mysterious to the
uninitiated. n26 The sailing vessel was the most technologically advanced machine of its time, and each culture's supremacy, or lack thereof, was reflected in its ability to build
the most powerful and efficient ships. n27 This ability, of course, was dictated by a society's [*276] social, political and economic situation, which can be interpreted from the
Although the sailing vessel was of great importance to a
society, the techniques used in their construction were often kept in the utmost secrecy
and were passed from father to son without being written down. n28 Because of this fact, modern
historians know very little about the construction of many historical vessels, and rely
heavily on the discoveries of underwater archaeologists. n29 Ships were truly a microcosm
of the societies that produced them, and the study of shipwrecks can open doors to
knowledge once thought lost forever.
artifacts and construction materials used on a vessel.
Salvaging Key
Salvaging key to protecting artifacts that will otherwise be lost forever
Neil, JD Candidate NYU, ’10 (Jeremy, “Sifting Through the Wreckage: An Analysis and Proposed
Resolution Concerning the Disposition of Historic Shipwrecks Located in International Waters” NYU Law
Review, 55 N.Y. L. Sch. L. Rev. 895, HeinOnline//bueno)
On the other side of the debate, commercial salvage corporations (and even a few
archaeologists) argue that salvage law is necessary for the protection of shipwrecks that
actually are in danger of being lost forever.45 They posit that man-made intrusions
into the ocean, such as fishing trawlers and waste, place wrecks in more
serious and immediate peril than do salvage companies. 6 For example, wrecks
located in certain high-traffic locations, such as the English Channel, appear to be at high risk
of severe damage or entire loss.47 In cases where wrecks are found to be in immediate peril, the
risks of salvage must be balanced against the risk of entire loss. Many commercial salvage companies
would likely concede Varmer's argument regarding a potential increase in deterioration once an artifact is
exposed to oxygen. However, they would likely point out that Varmer fails to address the ability of
the archaeological community to develop technology that counteracts the deteriorating
qualities of oxygen. Today, archaeologists are able to preserve many types of artifacts that
might have been subject to increased deterioration years ago.48
Most place a priority of protecting the artifacts
Neil, JD Candidate NYU, ’10 (Jeremy, “Sifting Through the Wreckage: An Analysis and Proposed
Resolution Concerning the Disposition of Historic Shipwrecks Located in International Waters” NYU Law
Review, 55 N.Y. L. Sch. L. Rev. 895, HeinOnline//bueno)
Further, many commercial salvage companies argue that the entire profession has gained a poor
reputation because of a few irresponsible parties. 49 Certain salvage companies argue
that one of their goals is to find and locate historic wrecks in order to satisfy
archaeological curiosity and to promote cultural education about these wrecks."o OMEX,
for example, employs a number of archaeologists on its salvage team to make sure that its
operations are conducted under the most up-to-date archaeological standards." As a
counterparty to the issue of archaeological standards, the next pertinent value preference
exhibited by decision makers is the ability of or prohibition on commercial salvage
companies earning a profit from salvaging historic wrecks.
Culture Internal Link
Key to culture
Scrimo, 2000– J.D., law student from the University of Maine (Jeffrey T., “COMMENT: Raising the
Dead: Improving the Recovery and Management of Historic Shipwrecks”, 5 Ocean & Coastal L.J. 271,
Lexis-Nexis, NG)
history provides a culture with stories that
give it meaning and direction, as well as an orientation to its own place in the sweep of
human events. Maintaining a link to the past allows the members of a society to
recognize who they are, study what forces have made them what they are, and
understand what makes them different from other cultures. n5 By preserving historic buildings and objects, we
maintain our past in such a way that our daily expectations and anticipations are
influenced, and our uniqueness is assured in an age of increasing homogeneity of
cultures. n6 Through the medium of historic objects, history is not dead, but maintains a
living ability to conjure emotions and thoughts in our daily lives. In the past, historians studied the written
documents left by political leaders, the elite, and the minority of the masses with the ability and ambition to write about an event. Of course, it does not require
much thought to realize that such a method leaves out a significant portion of a culture,
and gives a skewed interpretation of the past. Therefore, many historians have turned to
archaeology to fill in the large gaps left by the written record. n7 Since the development of modern archaeological
processes, archaeology has played an increasingly large role in the study of history.
Archaeology contributes to historical knowledge by studying the remnants of everyday
existence. n8 To an archaeologist, the everyday actions of the masses can be read, not in diaries or
official reports, but in the material footprints that they leave behind. n9 Through the study of tangible objects
left by a group of people, archaeologists gain an insight into the social and economic fabric of a
society. n10 It is recognized that the distinction between tangible and intangible cultural heritage is largely conceptual. n11 In fact, it has been said that "there is no
A. Why Preserve Historic and Archaeological Objects and Information? The study of
basic difference between the material manifestation of abstract concepts of form and function fossilized in the attributes of artifacts and the [*274] social manifestations of
similar concepts ephemerally translated into social activities." n12 In modern archaeology, it is the tangible expressions left by a past culture that provide the bridge to its
intangible attributes. In fact, when studying past cultures, the material expressions that they leave are most likely the only connection to the largely illiterate masses. Because the
historical artifacts left by the masses have acquired
unparalleled importance to the field. n13
study of history has evolved beyond the mere analysis of battles and kings,
Solves Profit Motive
Shift toward focus on cultural heritage solves profit motive
Henn ’12 (Cathryn, LLM in Environmental and Land Use Law, candidate, University of Florida Levin
College of Law, 2012; J.D., Barry University Dwayne O. Andres School of Law, 2011; B.S. (Psychology),
B.A. (History), University of Central Florida, 2008, “THE TROUBLE WITH TREASURE: HISTORIC
SHIPWRECKS DISCOVERED IN INTERNATIONAL WATERS,” International and Comparative Law
Review, Lexis)//ER
1. Archeological Interests The interests held by sovereign nations and the archeological community are similarly aligned, and together, can be viewed as representing the "desire
Sovereign nations are concerned
with the treatment of shipwrecks by foreign salvors because historic shipwrecks are
often culturally significant to nations: n34 countries who have lost significant amounts of vessels to the ocean stand to gain vast amounts of
cultural and historic education from the examination of their shipwrecks. But these countries will gain nothing if their
cultural heritage is snatched up by companies and auctioned off on the private market to
the highest bidder. n35 This is particularly true for the European nations of France, Spain, Portugal, the United Kingdom and the Netherlands, and the Asian
to implement and enforce archaeological standards when examining and salvaging a historic shipwreck." n33
nations of China and Japan. n36 The views of archeologists vary widely, ranging from advocating for pure in situ preservation, to the belief that current salvage practices best
protects underwater cultural heritage from [*149] human marine activity. n37 However, the archeological community is ultimately concerned with ethically gaining knowledge
about our collective past. n38 They are "concerned foremost with research questions about the human past on the one hand and the responsibilities of national and international
heritage management on the other." n39 Sovereign nations and archeologists disfavor the current application of salvage laws in comparison to a new legal regime specifically
designed to protect historic shipwrecks as cultural heritage. n40 The current legal regime applied by U.S. courts does not afford archeologists standing to argue on behalf of
Switching from the current legal scheme to a new system would allow for
the insertion of archeological standards in salvage, would shift away from profit-driven
treasure hunting, and provide for education based on recovered artifacts. n42 These individuals
preservation interests. n41
argue that the world's ocean pristinely preserves underwater artifacts; the lack of oxygen and the presence or absence of certain chemicals in the water contributes to the drastic
slowing of deterioration of shipwrecks in marine environments. n43 Instead, salvage companies place shipwrecks in peril by disturbing [*150] and raising artifacts to the
surface. n44 Archeological standards should be applied to the salvage of historic shipwrecks to combat the deteriorating effects of oxygen exposure and slow decomposition. n45
It is
further argued that the monetary and profit motives driving salvage companies should
be removed, ensuring a focus on the potential educational information that can be
gained from the site. n46 Unfortunately, abiding by archeological standards can be costly and time consuming. n47 Furthermore, many artifacts that are
ripe with information, such as the trace elements on ceramics, hold no monetary value for salvors. n48 Current salvage laws, as applied by
the courts, encourage salvage companies to loot shipwrecks for monetary gain, without
employing archaeological standards. n49 A new legal regime applying preservation laws
instead of marine salvage [*151] laws could discourage commercial exploitation and
make historic shipwrecks the property of sovereign states. n50
A new legal regime that applies preservation laws, instead of marine salvage laws, to historic shipwrecks could require archaeology industry standards in all excavations.
Impact – ADC
Archeological duty of care key
Bryant, 01– associate of Fried, Frank, Harris, Shriver & Jacobson in New York (Christopher R.,
“ARTICLE: THE ARCHAEOLOGICAL DUTY OF CARE: THE LEGAL, PROFESSIONAL, AND
CULTURAL STRUGGLE OVER SALVAGING HISTORIC SHIPWRECKS”, 65 Alb. L. Rev. 97, Lexis-Nexis,
NG)
A. Establishing the Duty Traditionally, for a salvor to be granted exclusive salvage rights to a shipwreck, and ultimately a salvage award, the salvor must establish the following
elements: (1) marine peril; (2) voluntary service; (3) success; and (4) dominion and control. n247 The salvor's award is then based upon the court's consideration of a list of
factors that the Supreme Court in 1869 set forth in The Blackwall. n248 Although slight variations on this approach may exist, adherence to this traditional scheme is the norm.
Nothing prevents modification of the above legal regime in the interests of protecting
the archaeological and historic significance of shipwrecks during the salvage process. n250
In fact, the Constitution implies that federal courts will continue to develop the law of
admiralty as necessary. n251 In keeping with this flexible judicial approach, admiralty courts can and have applied
the ADC, or certain elements thereof, upon salvors, requiring them to use archaeologically sensitive
salvage methods in order to preserve and protect historic shipwrecks and artifacts. n252 Only
one court has [*139] referred to this duty as the "Archaeological Duty of Care;" n253 however, other courts have imposed similar
requirements on salvors. n254 In Marex International, Inc. v. The Unidentified, Wrecked
and Abandoned Vessel, n255 the district court said that the ADC may be imposed on
finders or salvors operating on "shipwrecks of historic or archaeological significance." n256
n249
The court stated the ADC requires that finders and salvors must "document to the court's satisfaction the shipwreck's archaeological 'provenance data' ... by mapping or
recording the location, depth and proximity of each artifact recovered in relation to the other artifacts." n257 The court granted the plaintiff salvor in Marex International, Inc.
exclusive salvage rights because it adhered to the ADC by: (1) compiling a historical record of the shipwreck; (2) using divers trained in archaeological methods of mapping; (3)
employing careful excavating techniques; (4) conserving recovered artifacts in its laboratory; and (5) hiring experts to aid in evaluating and conserving the recovered artifacts.
, the district court in Cobb Coin Co. v. The Unidentified, Wrecked and
Abandoned Sailing Vessel n259 held that in order for salvors to establish salvage claims
to historic shipwrecks and receive salvage awards, salvors must satisfy the "essential
element" of documenting that they have preserved the wreck's archaeological data. n260
Importantly, the court held that this requirement is an element of establishing the salvage claim itself, and does not go to merely determining the award. n261 This is
important because it [*140] ensures that salvors will adhere to the ADC from the outset
and will not merely take their chances at the time they seek a salvage award. n262 Other courts,
however, have applied the general principles of the ADC only with respect to determining the salvage award. n263 Still other courts have confused
the elements of establishing a salvage claim and the elements of determining the award,
and have thrown the general principles of the ADC into the whole confused mix. n264 It
is more effective if the ADC is applied as an element of establishing a salvage claim,
rather than as a consideration for assessing the salvage award after salvage is completed,
because under the law of salvage a court can deny the claims of those salvors unable to
establish that they possess the requisite skill and capability necessary to adhere to the
ADC, and, when granting a salvage claim, courts can establish a monitoring system from the time the
claim is granted. Under the law of salvage, courts have jurisdiction to monitor salvors' progress and
revoke salvors' rights if they do not comply with the court's orders. n265 As such, the law of
salvage as it pertains to historic shipwrecks is superior to the law of finds because once a
finder has been granted title to the historic [*141] shipwreck the finder is free to do with
the wreck what he may. n266 Under the law of salvage, a court can, among other things, require the
salvor to submit periodic reports detailing its compliance with the ADC, and if it fails to
comply in any material way, the court can rescind the salvor's rights. n267 In this way, under the law of
n258 Similarly
salvage, courts can stay involved in the process; while under the law of finds, once the finder is granted title, the court lacks authority to enforce the ADC. n268 As the court
stated in Marex International, Inc., the ADC applies to salvors under the law of finds as well as the law of salvage. n269 As such, even when a court applies the law of finds with
respect to a historic shipwreck,
the court can at least require the finder to comply with the ADC as an
element of granting the finder title to the wreck. n270 This does not guarantee the more
expansive protection and oversight a court can provide under the law of salvage, but
does still impose a duty of archaeological care upon finders making a claim for title to a
historic shipwreck. n271 The ADC allows for the historic laws of finds and salvage to continue to apply to historic shipwrecks. This is important as it
preserves incentives for salvors to search for and salvage or recover historic shipwrecks because, as noted, without financial incentives, shipwrecks generally remain
the ADC protects the historical and archaeological value and integrity of
historic shipwrecks, and the provenance data coveted by archaeologists and others. n273
Furthermore, unlike with [*142] the UNESCO Draft, the application of the ADC as an element of establishing a
claim for title or salvage requires no legislation, international treaties, or governing
bodies, and preserves ancient and efficient admiralty laws.
undiscovered. n272 Moreover,
Solvency
US Key – Salvage
Now key for US admiralty courts to establish international law for salvage
Nafziger, President of American Branch of the International Law Association, ‘ 3 (James- Professor
Law at Willamette University, Winter, “The Evolving Role of Admiralty Courts in Litigation Related to
Historic Wreck” Harvard International Law Journal, 44 Harv. Int'l L.J. 251, HeinOnline//bueno)
federal courts sitting in
admiralty are as old as the Republic, they are only now emerging as fora for litigation of international
issues related to historic wreck at sea. A focus on U.S. courts is especially
significant because of the country's dominant role in salvage of historic
wreck around the world. The meaning of "historic wreck" is somewhat unsettled. One definition, drawn from criteria for historic salvage, refers
A fascinating example of such fora is a niche that U.S. admiralty courts fill in international dispute resolution.3 Although
to "long-lost vessels and cargoes, objects which may have both considerable monetary and archaeological significance. ' 4 It is unclear, however, to what extent a comprehensive
defini- tion should take account of the configuration of an entire wreck site. Sites are often significant as time capsules in which the relationship among maritime objects is itself
valuable. "Underwater cultural heritage" is a more recent but already widely used term that is roughly synonymous with historic wreck, but avoids the latter's identification with
salvage law. The underwater cultural heritage is conventionally defined as "all traces of human existence having a cultural, historical or archaeological character which have been
partially or totally under water, periodically or continuously, for at least 100 years."5 Eventually the broader term "underwater cultural heritage" may replace "historic wreck" as
international concepts and norms become embedded in admiralty decisions. Meanwhile, "historic wreck" remains a widely used and practical term in maritime practice and,
unlike "underwater cultural heritage," is not limited to material that has reposed underwater for more than 100 years. Despite the distinctions between the two terms, they
Underwater cultural heritage has been a last frontier of
international legal authority. Only recently, as a result of technological advances, has the
systematic exploration and excavation of this heritage become possible, leading
inevitably to disputes and the need for some kind of a legal regime to help avoid and
resolve them.6 Because of the huge expense of the requisite technology, commercial salvors-who are primarily from
the United States have been singularly able to exploit the opportunities for maritime
excavation. 7 The high stakes of commercial salvage have offered new opportunities for
litigation, too. Some of the cases are strictly domestic, but some raise important international issues. Claims of exclusive salvage rights and salvage awards have
generally will be used interchangeably in this Article.
been particularly controversial. The scientific community and the public have also had to seek protection of their interests in admiralty courts. For them, salvage itself may be a
Whatever the dispute, the legal regime of
regulatory jurisdiction, protection, and international cooperation in this area has been
very unsettled until recently. Nevertheless, a body of international law responding to issues of historic wreck is gradually emerging. 8 In particular,
threat to the heritage, as is looting by pirates and irresponsible recreational divers.
the UNESCO Convention on the Protection of the Underwater Cultural Heritage (the "UNESCO Convention"), when it comes into force, will provide a comprehensive regime. 9
The UNESCO Convention will have important implications for both parties and non-parties because it requires parties to apply new protective measures and pursue
consultation and cooperation with other states regardless of their relationship with the convention. The UNESCO Convention's elaborate provisions for dispute resolution by
international processes10 are generally limited to interstate claims. Strictly private disputes, such as those between competing salvors, would seem to lie beyond the treaty's
competence even if a dispute raises important international legal issues. The prescribed regime, however, will affect private activities indirectly, and many otherwise private
disputes will rise to the surface of the convention by virtue of state responsibility rules or by grace of a state's diplomatic protection of its nationals. Thus, even though
U.S.
admiralty courts will continue to focus on issues related to historic wreck that the convention does not address (such as ownership and abandonment of a
vessel), it is likely that the courts will also be instrumental as surrogates for dormant transnational
authority.
Foreign courts don’t apply the law of finds or salvage to shipwrecks.
Spencer 12 (Paul R., former executive board member of the Maritime Law Society, and former editorin-chief of the California Western International Law Journal. “Broadcasting Video Online from 5000 Feet
Underwater: A Proposal to Help Ensure an Archaeological Duty of Care for Historic Shipwrecks,”
California Western Law Review, Fall 2012, 49 Cal. W. L. Rev. 135, Lexis)
Treasure salvors are unlikely to use foreign courts. n40 Concerned with the need to
preserve archaeological data and prevent the sale of artifacts, foreign courts are
unlikely to apply the law of salvage or finds to shipwrecks . Many foreign nations
find salvage law inapplicable to historic shipwrecks. n41 For example, a court in Ireland refused
to apply salvage law to the shipwrecks of Spanish galleons, holding that commercial
maritime law did not govern these shipwrecks. n42 Nations such as France and Australia
have specific domestic laws, which exclude the application of the law of salvage or [*144]
finds to historic shipwrecks. n43 Many more nations adhere to a convention adopted in 2001
by the United Nations Educational, Scientific, and Cultural Organisation (UNESCO),
which "explicitly excludes the commercialization of historic shipwreck recovery." n44
Eighty-one nations voted to adopt the convention; however the U.S. abstained from voting. n45 Given the
overwhelming support for the convention, there is a widespread international
banning the commercialization of historic shipwrecks.
trend towards
US Key – Modeled
The US leads internationally on commercial salvage laws – would be a
model
Regan ‘5 (Rob Regan, presently completing his LL.M. thesis, Sovereign Immunity and the Lost Ships of
Canada's Historic Merchant Fleet, at Queen's University, Ontario. LL.B. 2004, Queen's University; B.A.
1988, University of British Columbia, “When Lost Liners Become Found: An Examination of the
Effectiveness of Present Maritime Legal and Statutory Regimes for Protecting Historic Wrecks in
International Waters with Some Proposals for Change,” 29 Tul. Mar. L.J. 313, 314-15, 2005, Lexis)//ER
the United States is unique in that most of
the major cases involving historic wreck have been litigated there. Through historic circumstance,
wrecks that have captured much of the public interest have been located off the coast of
the United States or discovered in international waters by U.S.-based concerns. As a
result, the United States has had the benefit of several well-reasoned appellate
judgments arising in the wake of the discoveries of the S.S. CENTRAL AMERICA, n187 the TITANIC, n188 the REPUBLIC, n189 and various other recently contested
historic wrecks. Taken together, these cases suggest a clear judicial recognition of the need to protect
these wrecks and for an unequivocal method of determining ownership of wreck. The
nature of the factual situations has enabled U.S. courts to articulate clear guidelines for
salvage activities involving historic wrecks, through mandating preservation-based salvage techniques, enjoining other would-be salvors from engaging in a
B. Treatment by American Courts Unlike Canada and other Commonwealth countries,
free-for-all over the wreck site, and making a clear statement on where the law of finds can be employed instead of the law of salvage. Columbus-America Discovery Group v.
Atlantic Mutual Insurance Co. n190 is a particularly good example of these principles. In that case, the Fourth Circuit encouraged preservation-based salvage techniques at
wreck sites by mandating that such activities in the future be considered as an element for determining salvage award quantum. n191 As mentioned in Part II, this new element
of computation for salvage awards will have a significant impact on future salvage awards in the United States, with the potential of being followed in other countries and
implemented in future [*348] amendments to the 1989 Salvage Convention. n192 In this case and the series of cases involving the TITANIC, there is also the suggestion that
salvors' conduct with regard to wreck preservation may well affect a U.S. court's willingness to grant injunctive relief for the benefit of the salvor-in-possession. n193 Finally, this
case also clearly explains the U.S. position on the law of finds to salvage situations and where a claim under the law of finds may be advanced, as opposed to the law of salvage. In
, there is a presumption in admiralty law that there is a true owner
somewhere and that the salvor is only entitled to a salvage award. This reflects a public policy intended to
a claim against the wreck or its cargo
encourage good behavior: Admiralty's equitable power to make an award for salvage - recognized since ancient times in maritime civilizations - is a corollary to the assumption
of non-abandonment and has been applied irrespective of the owner's express refusal to accept such service ... . These salvage rules markedly diminish the incentive for salvors
, its
application enables courts to encourage open, lawful, and cooperative conduct, all in the
cause of preserving property (and life). n194 As there is no principle of sovereign prerogative in U.S. admiralty law, ownership of truly
to act secretly, to hide their recoveries, or to ward off competition from other would-be salvors ... . In short, although salvage law cannot alter human nature
abandoned property does not automatically vest in the state. The law of finds resolves this problem by awarding abandoned property to its finder, but is applied only
exceptionally, as when the rightful owner or successor-in-interest cannot be found. At present, U.S. courts only recognize two categories of cases in which the law of finds will be
applied: (1) where owners have expressly or publicly abandoned their property and (2) where items are recovered from shipwrecks and no owner or successor-in-interest comes
In the case of the S.S. CENTRAL AMERICA, the Fourth Circuit determined that, due to the
fact that no successors-in-interest had come forward to claim ownership in the hull of the ship or the passenger's effects, these items were truly
abandoned and subject to the law of finds. n196 The cargo of gold, however, was subject to the law of salvage [*349] because the gold
to claim them. n195
had never been abandoned by the various insurers who had paid out on the insurance claims at the time of the loss. n197 The court held that there was no arbitrary time limit at
which point the subrogated interests of the insurers had lapsed. n198 In the case of the TITANIC, a successor-in-interest of the insurers who had paid out on the loss of the
TITANIC also presented a claim to the salvors, but a settlement was entered into, allowing the salvors to take sole possession of the wreck. n199 In the case of the REPUBLIC
it would seem that there
is a significant advantage for a salvor to advance a claim for relief in a U.S. court, given the fact
that there exists a comprehensive recent body of common law and judicial recognition of
the unique conditions surrounding these wrecks. On the other hand, those parties taking the position that these wrecks should
and the ATOCHA, no owners came forward, so the salvors in these cases took under the law of finds. n200 From these cases,
be left intact, without invasive exploration or salvage activities, would be better served in advancing their claim in a court in a Commonwealth jurisdiction.
Extraterritorial Jurisdiction Key
Extraterritorial jurisdiction key
Nafziger, President of American Branch of the International Law Association, ‘3 (James- Professor
Law at Willamette University, Winter, “The Evolving Role of Admiralty Courts in Litigation Related to
Historic Wreck” Harvard International Law Journal, 44 Harv. Int'l L.J. 251, HeinOnline//bueno)
A third stage of legal development involved a more complex analysis of issues relating to the salvage of wreck lying beyond coastal state jurisdiction, and therefore beyond the
extraterritorial jurisdiction, the basis for such jurisdiction evolved during
beyond simplistic applications of traditional rules. Unfortunately, however, issues of competing salvage
rights, jurisdiction to regulate salvage activities, and public access to such wreck began to fall between
jurisdictional cracks. Admiralty courts sometimes took foreign and international
interests into account, but they either ignored international law altogether or adopted a pseudo-international
law-to vindicate national interests.16 The federal district court in the R.M.S. Titanic litigation,' 7 for example, failed to apply the clear
prescriptions of Congress, 18 executive policy,19 and international law,20 all of which manifested a new sensitivity to foreign and international interests. The district
court's nonchalance about these legal authorities, though partly reversed on appeal, 21 generated shock waves
abroad. The court's interpretation of the normal jurisdiction it has vis-ii-vis "the whole world" in an in rem action 22 seemed inappropriate as applied to wreck of
scope of the ASA. Although even the early cases addressed issues of
the third stage well
historic foreign vessels, prompting observers to comment that "private property rights are being asserted by a national court in international waters over wreck of a foreign
The
need was becoming clear for admiralty courts to reconcile conflicting national interests
with newly acknowledged international interests. Fortunately, a fourth stage of legal development has been characterized by a
vessel in derogation of its own state's authority to conduct foreign policy and, albeit potentially, in direct contravention of a treaty recognized in international law."23
more sensitive interpretation of bilateral treaty law, a recognition of multilateral treaty law, and a new commitment to general principles of comity and international
The Fourth
Circuit, though often cited as one of the most conservative in the federal system, has been in the vanguard of progressively
redefining U.S. admiralty courts as emerging fora in litigation of internationally
significant historic wreck. 26 Admiralty courts engaged in "unique developments
of salvage law"27 provide an alternative to lawlessness on the frontier of
underwater cultural heritage and thereby fill a void. Current developments in the evolution of historic wreck
litigation in admiralty courts have been creative and teleological, rather than natural and incremental. The key features have been three
efforts: to fashion a constructive in rem basis for adjudicatory jurisdiction; to apply the jus gentium
and conventional international law more credibly and responsibly; and to redefine the general maritime law.
cooperation. The opinions of the Fourth Circuit in the Titanic24 and Sea Hunt25 cases, in particular, have been watersheds in this development.
A2: FSIA Application Correct
FSIA shouldn’t waive immunity for foreign states from suit when engaged
in commercial activity
Werner, JD Candidate University of Miami Law, ’13 (Dave, Summer, “Piracy in the Courtroom: How
to Salvage $ 500 Million in Sunken Treasure Without Making a Cent” University of Miami Law Review, 67
U. Miami L. Rev. 1005, lexis//bueno)
The principle holding of this case, that Spain is immune from suit,
hinges on the application of the FSIA. The FSIA plainly limits what suits a foreign
sovereign is liable for in the United States by stating subject to existing international agreements to which the United States
is a party at the time of enactment of this Act the property in the United States of a foreign state shall be immune from
attachment arrest and execution except as provided in sections 1610 and 1611 of this
chapter. n72 Moreover, the FSIA utilizes a broad interpretation of a foreign state by extending immunity for "agents or instrumentalities of the state," n73 ensuring that
courts in the United States cannot impinge upon the activities of a foreign state. Although the immunity of a foreign government from suit is presumed, limited
exceptions to this presumption exist, most notably, the commercial exception. n74 Under
the FSIA, property of a foreign state is [*1017] not immune from attachment when used for
"commercial activity," defined as "either a regular course of commercial conduct or a particular commercial transaction or act. The commercial character of
an activity shall be determined by reference to the nature of the course of conduct or particular transaction or act, rather than by reference to its purpose." n75 This
definition leaves the term "commercial" largely undefined and open to a variety of
interpretations. n76 Yet, courts generally hold themselves to a restrictive application of the exception that allows a court to waive immunity under the commercial
exception when a sovereign acts as a "private player," not as a "market regulator." n77 In its holding, the Eleventh Circuit explicitly points
out that Odyssey Marine failed to invoke the commercial exception in its appeal . n78
Odyssey Marine instead sought to invalidate Spain's invocation of the FSIA by citing to
section 1605(b) of the statute, n79 which carves out an exception to sovereign immunity
for a foreign state in suits in admiralty to enforce a maritime lien based upon a
commercial activity of the foreign state. n80 Because this exception is predicated upon a commercial exception like the more prevalent
B. Foreign Sovereign Immunities Act
section 1610 exception, the court held that neither statute applied in this case. n81
Commercial activity exceptions to FSIA
Song, Senior Staff Member American University Law Review, ’13 (Zhen, August, “Going For Gold: The
Meaning of "Commercial Activity" in the Foreign Sovereign Immunities Act in the Race for Buried
Treasure in Sunken Shipwreck” American University Law Review, 62 Am. U.L. Rev. 1771, lexis//bueno)
the FSIA, which codified the restrictive theory of
sovereign immunity n53 to "serve the interests of justice and ... protect the rights [*1780] of
both foreign states and litigants in United States courts." n54 The FSIA prescribes the
circumstances under which a foreign state can be sued in U.S. courts n55 and "provides the
"sole basis' for obtaining jurisdiction over a foreign state in the United States." n56 Of the
several exceptions to immunity listed in the FSIA, the most important and oft-discussed
are the two separate sets of commercial activity exceptions: one denies sovereign
immunity to foreign states n57 while the other applies exclusively to the immunity
afforded to the property of foreign states. n58 First, § 1605(a)(2) details the three circumstances under which a foreign
state engaged in commercial activity may be denied sovereign immunity and subjected
to the jurisdiction of U.S. courts. n59 Additionally, the FSIA does not extend immunity to a foreign state in admiralty suits brought to enforce a
A few months after the Alfred Dunhill decision, n52 Congress enacted
maritime lien n60 against a state-owned vessel or cargo if the lien is based on commercial activity. n61 [*1781] The second set of commercial activity exceptions, applicable only
to the property of a foreign state, is addressed in §§1609 and 1610(a). n62 In particular, "subject to existing international agreements to which the United States is a party at the
time of enactment of this Act the property in the United States of a foreign state shall be immune from attachment arrest and execution except as provided in sections 1610 and
§ 1609 explicitly provides that, unless an exception applies, the
property of a foreign state is immune from judicial arrest. n64 A notable
exception to this presumption of immunity involves commercial activity. n65 For
example, if a claim is based on property used for commercial activity within the United
States, there is no immunity from attachment arrest. n66 Although each commercial activity exception varies with regard to
the exact conditions that must be satisfied for U.S. courts to exercise jurisdiction over a foreign state or its property, n67 all exceptions share the
requirements that the activity in question is commercial n68 and that [*1782] the action giving rise to the suit is based
upon n69 that commercial activity. Therefore, it becomes imperative to determine precisely which types of activities constitute "commercial activity." n70 The FSIA
defines "commercial activity" as "either a regular course of commercial conduct or a
particular commercial transaction or act. The commercial character of an activity shall
be determined by reference to the nature of the course of conduct or particular
transaction or act, rather than by reference to its purpose." n71 However, this definition does not provide guidance
on how to determine whether an activity is "commercial" in nature, n72 which has led to
contradictory decisions in the lower courts. n73 Accordingly, the issue eventually reached the Supreme Court.
1611." n63 The language of
SMCA
Amending the Sunken Military Craft Act to provide that exclusively military
ships can be claimed under the law of salvages solves for a broader
commercial exception
Bederman ‘6 (David J. Bederman, the Board of Editors, “Congress Enacts Increased Protections for
Sunken Military Craft,” 100 Am. J. Int'l L. 649, 653-58, 2006, The American Society of Internationa Law,
Lexis)//ER
First, sections 1402, 1404, and 1405 might be amended (or construed through regulations) expressly to apply a "knowing and willful" standard of conduct. n78 Shipwreck
explorers that simply recover objects associated with sunken military craft should not be penalized or subject to liability if they were unaware that the objects came from a
sunken military craft. In addition to this express scienter requirement of knowing and willful conduct, the standard would contain as an element that the activity be directed at a
site or location known (or reasonably believed) to be that of a sunken military craft. Notably, such a scienter requirement is consistent with the laws of other maritime powers,
and, to the extent that Title XIV expresses congressional intent to comport with international law, n79 either this intent should be implied by the statute or an express
amendment should be made. For example, the United Kingdom's 1986 Protection of Military Remains Act makes clear that a party commits an offense only when it transgresses
a clearly demarcated area or designated wreck site, or when an actor "believ[es] or ha[s] reasonable grounds for suspecting that any place comprises any remains of an aircraft or
vessel . . . . [or] knowingly takes part in, or causes or permits any other person to take part in, the carrying out of any excavation or diving or salvage operation which is
prohibited." n80 Second, the statute needs to afford express protection to legitimate shipwreck exploration. As currently drafted, the statute affords a "safe harbor" provision to
virtually every legitimate ocean use, including fishing, navigation, and the laying of submarine cables and pipelines. n81 And while this provision appears to grant an exemption
to any ocean user, other than one whose activities involve sunken military craft, clearer direction needs to be given that nothing in the statute is meant to infringe the rights of
salvors or shipwreck explorers whose activities are not [*661] directed to sunken military craft. n82 Moreover, Congress should consider amending Title XIV to provide, as does
the UK Protection of Wrecks Act of 1973, that no offense will be deemed to have occurred, and no penalties will apply, if activities were undertaken either "for the sole purpose of
The
need for additional clarification of the statute is raised by the definition of "sunken
military craft" as "any sunken warship, naval auxiliary, or other vessel that was owned
or operated by a government on military noncommercial service when it sank." n84 Aside from
dealing with an emergency of any description" or "out of necessity due to stress of weather or navigational hazards." n83 The definition of "sunken military craft."
the ambiguity of stating that any vessel "owned or operated" by any "government" is covered (arguably including state or local governments in the United States), n85 the
meaning of "military noncommercial service" poses the primary problem raised by this provision: its application not to vessels of recent vintage but, rather, to vessels that sank
in the fifteenth through the eighteenth centuries. As already discussed, during this period the dividing line between vessels employed for a sovereign's "military noncommercial
It is inappropriate for the SMCA to be used by certain
parties to assert claims over vessels that had virtually no military noncommercial uses.
The easiest fix to the statute would be to add language to section 1408(3) that a subject
vessel must be "owned or operated by a government and exclusively on military
noncommercial service when it sank." The language of exclusivity conforms with current
and prospective U.S. treaty obligations, and the consistent policy positions previously
taken by the U.S. government. n86 Once again, to the extent that the SMCA evinces congressional intent to comport with international law, n87
either this language should be implied by the statute or an express amendment should
be made.
service" and for commercial duty was sometimes very thin.
More ev
Bederman ‘6 (David J. Bederman, the Board of Editors, “Congress Enacts Increased Protections for
Sunken Military Craft,” 100 Am. J. Int'l L. 649, 653-58, 2006, The American Society of International Law,
Lexis)//ER
The essential public policy decisions of the SMCA. The two most surprising policy positions
written into the SMCA, and the ones most at variance with preexisting customary
international law and general maritime law, are Congress's decisions to seek to
immunize foreign sovereign [*662] vessels in U.S. waters from recovery operations and to
impose an express abandonment rule tantamount to a claim of perpetual ownership for
U.S. sunken military craft. As for the first position, one wonders what may have motivated the
United States government to legislate a rule of decision with an uncertain potential for receiving
reciprocal treatment by other countries. While naval traditions of respecting shipwreck sites as war graves
enjoy considerable observance, it is unclear whether other nations would consistently cede regulatory
control over U.S. sunken warships in their territorial waters; n88 indeed, this uncertainty explains
some of the controversy surrounding the negotiation of the UNESCO CPUCH project.
Perhaps the U.S. government's position might be explained as a desire by a "first mover"
or "opening bidder" in creating a new rule of customary international law or general
maritime law. Nonetheless, the way the SMCA purports to protect foreign sovereign sunken craft is, at
the least, curious. A sunken foreign craft in the U.S. 200-nautical-mile EEZ or on the U.S.
continental shelf is accorded no express protection at all beyond the 24-mile limit of the
contiguous zone. n89 Such a vessel or aircraft would (presumably) still be subject to recovery
operations and to the unfettered jurisdiction of U.S. admiralty courts to administer the
maritime laws of salvage (consistently with rules for reasonable refusals of salvage services) and
finds (in the event that a craft is actually found to be abandoned). Of course, it is entirely possible that,
while such wreck sites are not covered under the SMCA, the U.S. government would still seek to persuade
U.S. admiralty courts to apply express abandonment standards to the disposition of the sites and to deny
salvage. The United States might even rely on the conclusion of bilateral agreements to
settle expectations about the disposition of sunken foreign military craft in U.S. waters,
n90 although questions certainly remain as to how such instruments could be legally
enforced in the face of an already-existing admiralty action in U.S. courts. The position I
have taken here on an express abandonment standard of perpetual ownership for sunken military craft is
that warships (at least those that sank before the twentieth century) are not subject to a special
rule of express abandonment, and that even if title in such vessels remains in the
original sovereign, they are still subject to otherwise proper claims of salvage. I believe
that this position properly characterizes the relevant international and domestic law on
this subject. Nevertheless, today the received wisdom appears to be that international law requires that
title in sunken warships be preserved for the original, owning sovereign and that such ships must be
absolutely immune from claims of salvage. I believe this "received wisdom" to be part of a larger program
of interest in protecting underwater cultural heritage, and its actual sagacity to turn on the wider policy
dimensions of the management of underwater cultural heritage. But there is another, more subversive
aspect to what has come to be regarded as the modern position on the status of sunken military craft. To
be effective, the modern position must characterize itself as established customary international law. And
to maintain title to warships that sank in the seventeenth or eighteenth centuries, or to bar salvage in
those vessels, commentators and states espousing the modern position must argue that a rule of express
abandonment for [*663] warships is actually of ancient vintage, or that a prohibition on salvage for
sovereign vessels is a hoary principle of maritime law. The reality, as I have intended to show here, is
quite the opposite. Nevertheless, I believe there has recently been a careful and concerted effort to
contrive a pattern of state practice and to pass it off as established and binding customary international
law. This phenomenon of "instant" custom, a remarkable (and somewhat criticized) feature of the modern
law of the sea, n91 is certainly problematic in the context of a historical inquiry into the legal status of
objects lost at sea for extended periods of time. In justifying this latest shift in the international law of
immunities for sunken warships, one might legitimately observe that all advancements of instant custom
are made at the initiative of the states most concerned. Insofar as the dynamic of lawmaking for the
oceans has always been dominated by the great maritime powers, it comes as no surprise that advocates
for the former Soviet Union, n92 the Kingdom of Spain, n93 other maritime powers, n94 and now the
United States have each articulated a coherent theory of continuous ownership and nonabandonment for
their sunken craft. To the extent that these positions are acquiesced in by coastal states and other powers,
I suppose they will become new customary international law, in a process as old as the law of the sea itself.
n95 But, make no mistake, this is progressive development of the law of the sea, not codification of an
existing custom. Consequently, quite apart from exploring an interesting doctrinal byway in the new law
of the sea, this essay has sought to raise some systemic questions about the nature and legitimacy of the
international lawmaking process. Despite attempts to place the law of the sea on a footing that carefully
gauges overweening assertions of state authority and sovereignty, and promotes private sector
development of ocean resources, the reality remains that state interests predominate in this field.
Moreover, the levers of the very machinery that
creates international rights and duties
remain very much in the hands of state authorities, and they are free to manipulate
them in any way to create favorable customary international law. Congress's surprise
enactment of the SMCA certainly illustrates this dynamic. In any event, disputes about the legal status of
sunken warships are just one example of these processes at work. We can probably expect further
developments in this area of international law, and even greater dissension.
Sunken Military Craft Act summary (only applies in US territorial waters)
Werner, JD Candidate University of Miami Law, ’13 (Dave, Summer, “Piracy in the Courtroom: How
to Salvage $ 500 Million in Sunken Treasure Without Making a Cent” University of Miami Law Review, 67
U. Miami L. Rev. 1005, lexis//bueno)
1. The Sunken Military Craft Act Enacted in 2004, the Sunken Military Craft Act ("SMCA") aims "to
preserve the right, title, and interest to any sunken military craft for the dual purpose of protecting
military intelligence and affording proper respect to lost servicemen." n83 The SMCA outlaws "engaging
in any activity directed at a sunken military craft that disturbs, removes, or injures any sunken military
craft" without the explicit authorization of the government. n84 The SMCA also proclaims that the
passage of time shall not extinguish the United States' rights, title, and interests in its sunken military
craft without an express divestiture. n85 The SMCA defines "sunken military craft" as "all or any portion
of (A) any sunken warship, naval auxiliary, or other vessel that was owned or operated by a government
on military noncommercial service when it sank and (B) any sunken military aircraft or military
spacecraft that was owned or operated by a government when it sank." n86 Succinctly, the SMCA broadly
interprets "sunken military vessel" to include all vessels owned and operated by the government. The
SMCA fails to distinguish between the cargo and the vessel itself, meaning that the vessel and its cargo, for
the purposes of this statute, are a single entity.
Although the SMCA is domestic law, section 1407 of the SMCA encourages bilateral and multilateral
agreements between the United States and foreign nations in congruence with the intent and purpose of
the Act. n87 Spain and the United States never entered into an agreement regarding the obligations and
duties of the SMCA, but the plain language of the statute evidences a legislative intent to establish
reciprocity in the relationship between nations. n88 The framework that defines a sunken military vessel
and protects lost ships under the U.S. domestic laws provided a template for the Eleventh Circuit to
extend protections to the Mercedes.
Members of Congress filed an amicus brief to clarify the legislative intent of the statute, particularly in
regard to what vessels are protected by the SMCA. The brief concluded that properly construed, the
SMCA's protections do not extend to vessels (whether denominated as "warships," "naval auxiliaries" or
[*1019] "other vessels"), which are engaged in substantial "commercial service" at the time of their
sinking. Carrying private passengers and commercial cargo for freight, payable to the government, should
not be construed as "military non-commercial service" such as to bring a vessel within the protections of
the SMCA. Any other interpretation would be contrary to the clear language of the SMCA, the position of
the United States Navy and Congress's intent in legislating that statute. n89
Offcase Answers
Topicality
Exploration
11th Circuit ruling prevents deep-see exploration
Werner, JD Candidate University of Miami Law, ’13 (Dave, Summer, “Piracy in the Courtroom: How
to Salvage $ 500 Million in Sunken Treasure Without Making a Cent” University of Miami Law Review, 67
U. Miami L. Rev. 1005, lexis//bueno)
Odyssey Marine Exploration, Inc. v. The Unidentified Shipwrecked Vessel is a watershed moment for the
deep-sea salvage industry. Odyssey Marine resolves two key issues regarding a salvage firm's interest in its finds. First, the Eleventh Circuit's holding
V. Discussion
determines the relevance of sovereign immunity to historical shipwrecks. Secondly, it weighs the [*1026] benefits of retrieving artifacts and treasures from lost ships against the
Although tantalizing riches are available on the
ocean floor to those salvage firms that can find them, legal and moral restrictions limit the seizure of those
goods. Technological limitations once severely hindered the industry, but modern advances in the industry's techniques and tools now grant access to vessels once lost to
the depths of the ocean. Today, the industry is not constrained solely by physical impediments; rather, it
is hampered by the sensitivities and sensibilities of those protecting the resting places of
ships and sailors. By finding for Spain on all issues in Odyssey Marine, the Eleventh
Circuit serves as a harbinger of change for the marine salvage industry by
curtailing the breadth of deep-sea exploration endeavors. First, this section demonstrates that
destruction of shipwrecks and the final resting ground of those lost at sea.
Odyssey Marine, despite its for-profit business model, shares the same respect for sunken vessels and desire to preserve antiquities as academic deep-sea exploration ventures.
Secondly, this analysis examines the impact of the court's holding on Odyssey Marine's modern approach to the salvage of sunken vessels. n133 This discussion will also
inconsistencies hidden within the Eleventh Circuit's holding, which protects
diplomatic relations at the expense of the deep-sea salvage industry. Lastly, the discussion proposes an
illuminate the
alternative to the Eleventh Circuit's holding that balances the interests of a burgeoning industry with the desire to conserve and preserve sunken vessels.
Its
Aff extends US jurisdiction into extraterritorial waters
Segarra, Esquire Associate Johnstone Adams Bailey Gordon & Harris LLC, ’12 (Jonathan, July,
“Above Us the Waves: Defending the Expansive Jurisdictional Reach of American Admiralty Courts in
Determining the Recovery Rights to Ancient or Historic Wrecks” Journal of Maritime Law and
Commerce, 43 J. Mar. L. & Com. 349, lexis//bueno)
the
court in Odyssey Marine Exploration, Inc. v. Unidentified, Wrecked, and Abandoned Sailing Vessel n73 contemplated the exercise
of American in rem admiralty jurisdiction over the 18th-Century wreck of Le Marquis
Tournay, a French vessel that foundered in the English Channel. n74 Noting that the wreck lay "beyond the territorial waters or contiguous zone of any sovereign
nation," n75 the court found that it had in rem jurisdiction over the items brought before it , such as
a brick from the sunken vessel, but that "[i]n rem jurisdiction fails to extend to the artifacts that remain
in international water, and this want of jurisdiction prevents an adjudication in rem." n76 The court immediately qualified this language, however, with
ii. American Jurisdiction Beyond the Contiguous Zone Unlike the Treasure Salvors litigation, which dealt with a vessel lying in the contiguous zone of the United States,
the observation that "[t]o avoid 'rigid legalism,' the law of salvage permits the exercise of in rem jurisdiction by constructive possession, even if the court possesses only a portion
the court then stated that "[n]ormally, however, in rem
jurisdiction by constructive possession attaches only if the entire res is located within
the territorial jurisdiction of the forum." n78 In setting up an argument for the extra-territorial exercise of its in rem jurisdiction over the
of the total res." n77 Working itself into a bit of a quandary,
vessel, the court noted that Section 6 of the Restatement (Second) of Judgments (1982) relates that "[a] state may exercise jurisdiction to determine interests in a thing if the
relationship of the thing to the state is such that the exercise of jurisdiction is reasonable." n79 Expounding that "'a court must be sensitive to the principle of international
comity, as the application of international law evokes a sense not only of discretion and courtesy[,] but also of obligation among sovereign states'" and mentioning [*362] that
"'[t]he court's perspective is guided by reasonableness,'" n80 the court provided an excellent condensation of the two principle theories that American courts employ when
To avoid an unreasonable constraint on in rem
jurisdiction, admiralty law recognizes two exceptions to the requirement that the res
remain within the territorial jurisdiction [of the United States]. The first exception , established
in the [Treasure Salvors] litigation . . . allows the exercise of "quasi in rem jurisdiction" over the res to
adjudicate rights among parties over which the court enjoys in personam jurisdiction
(even though the res is outside the territorial jurisdiction of the court). The second exception, established in
asserting extraterritorial in rem jurisdiction over shipwrecks:
the litigation over the RMS Titanic, extends in rem jurisdiction by constructive possession and allows the declaration of an exclusive right to salvage a wreck in international
water. n81 Importantly, the court then repeated the limitation of quasi in rem jurisdiction noted by the Fifth Circuit and the Supreme Court by stating that "quasi in rem
jurisdiction permits a determination of rights between the parties to the litigation [and so] the court cannot adjudicate the rights of an absent third party over whom the court
enjoys no adjudication." n82 Similarly, when rejecting the claim of the company trying to recover (and gain title to) the sunken vessel, the court stated that "any exercise of
jurisdiction that allows a declaration of rights against a future claimant operates identically to an ordinary in rem claim, and an ordinary in rem claim requires the presence of
the res within the [court's] territorial jurisdiction." n83
We meet its – aff extends federal jurisdiction over shipwrecks outside of
our territorial waters
Alexander, Professor Law at University of Baltimore, ’89 (Bruce, January, “Treasure Salvage Beyond
the Territorial Sea: An Assessment and Recommendations” Journal of Maritime Law and Commerce, 20
J. Mar. L. & Com. 1, HeinOnline//bueno)
Once some object from the shipwreck is recovered and literally brought into the territorial jurisdiction of the court, the salvor's maritime lien 27 and the court's in rem
The court's jurisdiction should not, however, be narrowly limited to the
recovered objects. 29 So long as the salvor continues to demonstrate ability, intention, and "success" in recovering objects from the shipwreck, the
court should have constructive in rem jurisdiction, which is sufficient to protect the first
salvor from interlopers. 30 The doctrine of necessity also supports the exercise of
jurisdiction over the shipwreck because the court should have the power, and perhaps
the obligation, to provide a centralized forum for the adjudication of all disputes relating
to the salvage of the shipwreck. 31 If interlopers are allowed to carry off or destroy objects
from the wreck, multiple forum litigation may result. At a minimum the in rem jurisdiction of the court will be
jurisdiction are perfected. 28
impaired, and the court should have the power to preserve its jurisdiction when it is
properly invoked and perfected.32
CP Ans
A2: Non-Court CP
Only federal judiciary can make determination of the applicability of FSIA
Huang, Professor Law at Shanghai Institute of Foreign Trade, ’13 (Jie, May, “Odyssey's Treasure Ship:
Salvor, Owner, or Sovereign Immunity” Ocean Development & International Law, Vol 44 No 2, p 170-184,
T&FOnline//bueno)
Before the mid-twentieth century, the U.S. common law afforded foreign sovereigns
absolute immunity from suit.60 A more restrictive theory of sovereign immunity replaced
absolute immunity in 1952 when the acting State Department legal adviser Jack B. Tate sent what became known as the Tate Letter to the acting
attorney general. The Tate Letter indicated that the reason for a shift was that “the widespread and increasing
practice on the part of governments of engaging in commercial activities makes
necessary a practice which will enable persons doing business with them to have their
rights determined in the courts.”61 Before the enactment of the FSIA in 1976, a foreign state, if involved in a case, often requested the State
Department to make a formal request for immunity to a U.S. court. The FSIA not only codified the restrictive theory of
sovereign immunity, but also made the judicial branch the final decision maker
of the existence of foreign sovereign immunity.62 The FSIA provides that a U.S.
court has no jurisdiction over a foreign state unless a statutory exception to immunity
applies. Two grants of immunity exist under the FSIA.63 Under Section 1604 the foreign state itself is immune, and under
Section 1609 the property of a foreign state is immune from arrest, attachment, and execution. In both situations, immunity can be waived and does not
apply to commercial activities. The structure of the FSIA and the language of Sections 1604 and 1609 demonstrate that Section 1605(b) regarding
FSIA.
maritime liens64 is not an exception to Section 1609. Since the Odyssey Case involved the immunity of the Mercedes, the property of Spain and not Spain itself, the court was
correct that Section 1605(b) did not apply to Odyssey’s in rem claims against the Mercedes. Moreover, the FSIA does not contain a possession exception; in other words,
possessing property is not a precondition for a foreign state to claim immunity. The court in the Odyssey Case correctly distinguished the case from California v. Deep Sea
Research65 and Aqua Log, Inc. v. Georgia,66 which imposed a possession requirement on a U.S. state (Georgia and California) claiming immunity for its property. These two
cases concerned Georgia and California property and not foreign state property. Moreover, as the Mercedes court emphasized, when enacting the FSIA, the U.S. Congress clearly
Commercial activity is the mostoften-invoked exception under the FSIA. As already noted, the FSIA defines “commercial activity”
by “the nature of the course of conduct” without considering the purposes of the
conduct.68 The UNESCO Convention does not define commercial activities, although it defines “state vessels and aircrafts.”69 The 2004 United Nations Convention on
did not intend that property not in a foreign sovereign’s possession was an exception to immunity.67
Jurisdictional Immunities of States and Their Property (Convention on Immunities) defines commercial transactions primarily by their nature.70 The Convention on
Immunities also indicates that the purpose of a commercial activity “should also be taken into account if the parties to the contract or transaction have so agreed, or if, in the
practice of the state of the forum, that purpose is relevant to determining the noncommercial character of the contract or transaction.”71 The purpose of commercial activity is
subjective and may be difficult to decide in practice. Comparatively, the nature of the transaction is more objective and easier to determine. However, undeniably, the purpose of
a transaction may influence its nature. Therefore, compared with the FSIA, the 2004 Convention on Immunities is an improvement since it uses objective factors as a primary
criterion and subjective factors as a supplement to determine whether an activity is commercial.
A2: International Investment CP
Not an investment so can’t be solved by investment law
Blunt 12- J.D. Candidate, Georgetown University (Amanda, “New framework of international
investment law”, Winter 2012, 24 Georgetown International Environmental Law Review 195)
Most UCH disputes take the form of in rem actions under federal maritime law, like the Black
Swan case, and would not reach investment arbitration. Investment law is inapplicable to
the Black Swan case because Odyssey's claim did not arise out of an investment made in
Spain. By contrast, if the contract to recover the Belitung Wreck had given rise to a legal claim,
investment law might have governed it. Indonesia, the host state, and Germany, the salvor-investor's
country of incorporation, have a standing IIA that broadly defines investment as "any kind of asset,"
including movable property, and refers disputes to an arbitral tribunal with members appointed by each
country and a designated third country. n169 However, the contract would not meet the Salini
requirement of two to five years duration. n170 But if the arbitrator adopted the same flexible
jurisdictional standard employed by MHS II, considering but not mandating the Salini criteria, the
contract would likely be deemed an investment because it involved significant contribution and risk. n171
Investment Law fails- favors investors, hurts legitimacy
Blunt 12- J.D. Candidate, Georgetown University (Amanda, “New framework of international
investment law”, Winter 2012, 24 Georgetown International Environmental Law Review 195)
In addition to its limited application,
critics of investment law generally claim it favors investors
at the expense of regulatory sovereignty, often conflicts with international treaties, and
suffers from a legitimacy crisis. Tension exists between protecting private investors' rights
and permitting sovereign states to regulate the public interest, including culture. n175 Some
critics question whether the threat of investor-state arbitration results in a regulatory chill
over domestic legislation aimed at public interest objectives. n176 For example, domestic policies
concerning environmental protection, corporate social responsibility, and human rights often conflict
with IIA provisions. All of these policy areas implicate cultural property. n177 Another weakness is the
conflict between international investment law and other treaties and regimes, which leads some scholars
to claim that international investment law suffers from a legitimacy crisis. n178 This alleged legitimacy
crisis also stems from a lack of transparency, a failure to address the broader needs of
society, and general inconsistency. n179¶ [*219] Despite these general drawbacks and its narrow
application, after MHS II, international investment law would protect a narrow class of
public-private salvage partnerships, indicating another layer of international regulation that now
governs UCH. n180 Moving forward, arbitrators should strive to shape a system that couples sovereign
states' preservation policies with investment incentives to attract the capital necessary to conduct
responsible salvage. Therefore, this article supports further exploration of the use of investment law to
regulate the commercial salvage of UCH because such regulation could temper CPUCH's outright ban and
draw diverse stakeholders into productive partnerships. Additional research is needed; for example,
future governance would benefit from a survey of major salvage participants and their existing IIAs; a
study of cultural clauses in IIAs and how effectively they govern cultural property disputes; drafting a
model for investor-state partnerships in UCH salvage; and polling cultural property stakeholders to
identify practical concerns with investment law's governance of UCH.
A2: States CP
Only federal courts have jurisdiction
Paull, JD Candidate FSU College of Law, ’94 (James, “Salvaging Sunken Shipwrecks: Whose Treasure
is it? A Look at the Competing Interests for Florida’s Underwater Riches” 9 J. Land Use & Envtl. L. 347,
lexis//bueno)
Federal courts have original and exclusive jurisdiction for all admiralty or maritime
claims.22 In salvage law claims, a finder may bring an in rem action against the vessel to
satisfy a maritime lien even though the court may not have in personam jurisdiction
over the owner.23 Once the res 24 is recovered and brought before a maritime court,25
that court may grant an award to the salvager and may also grant an injunction against
others from salvaging that site. Thus, the federal court retains jurisdiction over the
salvagers competing for the res, which is in possession of the court even though the ship itself
may be outside of the jurisdictional territory of that particular court.26 Although maritime
courts have jurisdiction over cases in international and, traditionally, in state waters, the courts cannot
make a judgment regarding a state's ownership of artifacts that are recovered in state waters.27
Federal courts are responsible for shipwreck outside of miles from the
coast – not the states.
Spencer 12 (Paul R., “Broadcasting Video Online from 5000 Feet Underwater: A Proposal to Help
Ensure an Archaeological Duty of Care for Historic Shipwrecks,” California Western Law Review, Fall
2012, 49 Cal. W. L. Rev. 135, Lexis)
1. The Limited Role of State Courts A variety of factors converge to make the
federal courts
the most likely forum for deep-water historic shipwreck claims. Treasure
salvors are unlikely to choose state courts because the Abandoned Shipwrecks Act
("ASA") passed by Congress in 1987 effectively [*143] gives states possession of any abandoned
shipwreck within the state's submerged lands, which is generally three geographic miles
seaward from a state's coastline. n37 This has the effect of costing a treasure salvor their claim to a
shipwreck and the recovered artifacts located less than three miles from a state's coastline if a suit is
brought in a state court. All artifacts recovered within three miles of a state's coastline would
belong to the state. In contrast, a federal court would not apply the ASA to historic shipwreck claims
located within three miles of a state's shore. n38 And finally, if the shipwreck lies beyond the
three-mile limit, federal maritime law applies exclusively, and the salvor will have to
present their claim in federal court. n39
States lack funding
Bryant, 01– associate of Fried, Frank, Harris, Shriver & Jacobson in New York (Christopher R.,
“ARTICLE: THE ARCHAEOLOGICAL DUTY OF CARE: THE LEGAL, PROFESSIONAL, AND
CULTURAL STRUGGLE OVER SALVAGING HISTORIC SHIPWRECKS”, 65 Alb. L. Rev. 97, Lexis-Nexis,
NG)
The ASA's policy of granting control over certain shipwrecks to states and not admiralty
courts represents a dramatic break with traditional admiralty law. n188 Congress, however,
apparently believed that states could police the management, preservation, and salvaging of historic
shipwrecks better than the Federal Government n189 or even admiralty courts n190 - a view surely
supported by archaeologists. n191 In some ways, salvors themselves are to blame for the
enactment of the ASA because it was the insensitive actions of some salvors that brought
it about. n192
Regardless of what led to the enactment of the ASA, and despite the fact that it forecloses the possibility
that admiralty courts will [*129] extend the recent destructive trend of applying the law of finds to
historic shipwrecks in international waters to those in state waters, n193 it is time for the ASA's
repeal. In its place, admiralty courts, which historically have had the responsibility of
fashioning admiralty law in significant part, n194 should uniformly apply the ADC to
salvors seeking to establish claims for title or for salvage rights to historic shipwrecks.
n195 Meanwhile, or at least in the alternative, Congress should provide states with funding to support
historic shipwreck research and salvage efforts to ensure that such activities continue. The lack of
funding at the state level cripples research and salvage and recovery efforts, as
illustrated by the case of the Queen Anne's Revenge. n196 As noted, this wreck was
discovered by a commercial salvor, yet North Carolina now holds title to the wreck. n197
As is typical with archaeologists and government entities, North Carolina appears to lack either
the financial commitment or ability to fund its salvage operation adequately to ensure
the swift salvage or recovery of the wreck. n198 Moreover, since the Queen Anne's Revenge has
been under the control of the state's archaeologists, the vessel has been seriously threatened with
total destruction from the elements. n199 This cannot be the result contemplated by Congress
when it enacted the ASA.
A2: Salvage Moratorium CP
No link– salvaging ships ensures the dead are properly buried
Bryant, 01– associate of Fried, Frank, Harris, Shriver & Jacobson in New York (Christopher R.,
“ARTICLE: THE ARCHAEOLOGICAL DUTY OF CARE: THE LEGAL, PROFESSIONAL, AND
CULTURAL STRUGGLE OVER SALVAGING HISTORIC SHIPWRECKS”, 65 Alb. L. Rev. 97, Lexis-Nexis,
NG)
Neither history nor the law treats shipwrecks, historic or otherwise, as
protected underwater cemeteries. n23 It is argued, [*101] however, that salvaging shipwrecks "disturbs the final resting places of those who lost
their lives in a shipwreck disaster." n24 The historic, social, scientific, and monetary value of historic
shipwrecks, however, dictates that they should not be treated as underwater cemeteries
protected from salvage or recovery. n25 The decision to recover the H.L. Hunley, a Confederate submarine known to contain the remains of
soldiers, underscores the notion that historic shipwrecks should be salvaged and recovered even when
human remains are present. n26 Upon recovery, the remains of the Hunley's crew will be studied
by a forensic team and then reburied in a military ceremony. n27 Moreover, throughout history,
shipwrecks have been treated as anything but underwater cemeteries. n28 The existence of the laws of finds
and salvage illustrates that shipwrecks, historic and otherwise, are viewed under the law as property subject to
salvage and recovery. n29 In fact, "the general presumption under the maritime law of salvage [is] that historic shipwrecks are in marine peril and need to
be salvaged so that they can be returned to the stream of commerce." n30 Moreover, it should be remembered that while cemeteries are the
intended resting place for the dead, shipwrecks are not. As noted, naval shipwrecks are
regarded by some as underwater cemeteries that should be protected from salvage and
recovery. n31 [*102] For example, in June 1993, a diver discovered a German World War II U-boat off of Cape Cod, Massachusetts. n32 Germany, concerned with
A. Shipwrecks as Protected Cemeteries
preserving the sanctity of the site, argued that the U-boat was a war cemetery and that the bodies contained within the wreckage should not be disturbed by salvors or divers.
n33 Despite such protests, however, another U-boat discovered in the Potomac River may become an "underwater park" open to divers. n34 Of course, the U-boat would be of
even more value and interest to the public and archaeologists if it were recovered, as was the H.L. Hunley. Spain, like Germany, has also argued that historic Spanish shipwrecks
resting in U.S. waters should be treated as underwater cemeteries. Spain recently challenged a U.S. commercial salvage firm, Sea Hunt, Inc., in U.S. district court over the rights
to two Spanish galleons, La Galga and the Juno, which Sea Hunt discovered off the coast of Virginia. n35 It is unclear how many lives were lost on La Galga, but at least 413 lives
were lost on the Juno. n36 Spain argued that the shipwrecks were "'military gravesites, and anything that [was to be] done with them must respect those sensitivities.'" n37
While the district court determined that Spain expressly abandoned La Galga under a 1763 treaty ending the Seven Years War, n38 the court of appeals reversed this finding on
the grounds that the treaty did not act to expressly abandon La Galga. n39 [*103] Spain also retained ownership of the Juno because there was no evidence that Spain had lost
title to the vessel (either by expressly abandoning it or because it fell under the actual control of the United States before its sinking). n40 Sea Hunt then sought a partial salvage
award from Spain for locating the Juno and for services rendered. n41 Spain argued that the Juno was a "maritime grave" and that it never intended for the Juno to be salvaged.
n42 In an unpublished opinion the court later held that Sea Hunt was not entitled to a salvage award from Spain. n43 A shipwreck that claimed at least 413 lives must be treated
with dignity and respect. In light of the potential fortune that may be contained in the Juno, n44 however, some have speculated that Spain will salvage the wreck itself. n45
Regardless, the social, historical, scientific, and monetary value of the Juno as a salvaged vessel far exceeds its value as a so-called underwater cemetery (especially one that is
It is because
historic shipwrecks have such diverse value that they should not glibly be labeled as
cemeteries and kept off-limits to salvors and others. n47 This value was clearly acknowledged by Congress in enacting the
Abandoned Shipwreck Act of 1987 (ASA). n48 For example, in the ASA's Congressional statement of findings n49 and the legislative record, abandoned
shipwrecks are described as "resources" over which states have the responsibility of
management. n50 Importantly, the ASA does not expressly make reference to human remains. Moreover, the word "resource," as it
is commonly understood, is wholly inconsistent with traditional notions of cemeteries. n51
not likely to contain any human remains after nearly 200 years at the bottom of the Atlantic Ocean) and dictates that it should be salvaged. n46 [*104]
The United Nations Convention on the Law of the Sea (UNCLOS III) also acknowledges the value of historic shipwrecks, and states that member nations have a "duty to protect
objects of an archaeological and historical nature found at sea." n52 UNCLOS III does not define archaeological and historical objects, nor, as with the ASA, does UNCLOS III
expressly refer to human remains. n53 [*105] Regardless, UNCLOS III states that no admiralty laws, including the law of salvage, are affected by this duty. n54 Therefore,
because the laws of finds and salvage do not prohibit the salvaging of wrecks containing
human remains, even if the definition under UNCLOS III of an archaeological or
historical object did include human remains, nothing in UNCLOS III would prohibit
salvaging vessels containing human remains. n55 Historic shipwrecks must be treated with respect, particularly if they contain, or
contained, human remains. This respect, however, should not extend so far as to treat historic shipwrecks
as underwater cemeteries that cannot be salvaged for various purposes. n56 Such
treatment is an "extreme form of preservation" n57 that vitiates the historic laws of finds
and salvage and dooms shipwrecks to complete loss with the passage of time. Consider that, Within
the anthropological and archeological fields, it is widely acknowledged that the quest for knowledge about the past and the preservation of that knowledge for future generations
it is also widely acknowledged that to gain such knowledge requires
examining ruins of earlier cultures - including human skeletal remains.
is an important endeavor;
International moratorium doesn’t solve cultural value
Neil, JD Candidate NYU, ’10 (Jeremy, “Sifting Through the Wreckage: An Analysis and Proposed
Resolution Concerning the Disposition of Historic Shipwrecks Located in International Waters” NYU Law
Review, 55 N.Y. L. Sch. L. Rev. 895, HeinOnline//bueno)
By attempting to protect historic wrecks from individuals and corporations who employ no archaeological standards, the Convention has succeeded in creating a sort of
moratorium seems incompatible with the stated "value of
public education to contribute to awareness, appreciation and protection" of historic
wrecks asserted by UNESCO." In an attempt to protect the historic wrecks from potential damage or destruction, the Convention has put the
onus on successive generations to find and locate these historic wrecks. This
diminishes the awareness, education, and appreciation of the world public,
as well as the likelihood of wrecks being found; without the competitive salvage
industry, less money will be put into research and development of new technologies,
extending the amount of time taken to locate the wrecks, if they can be located at all. In addition, by
eliminating the commercial incentive of salvage companies and thereby limiting the
number of wrecks that can be found and located, many wrecks in peril of being damaged
and destroyed will receive no protection at all. The drafters of the Convention seem to assume that because not all wrecks are
moratorium on location and recovery efforts. This
considered to be in marine peril, all wrecks are perfectly safe in their present conditions. Realistically, this principle cannot be supported. Human intrusion into the ocean is a
Waste and fishing activities in certain high-traffic
locations like the English Channel place wrecks in serious and immediate peril." Similarly, the
ocean floor is subject to many dangerous natural disasters, such as underwater
volcanoes and earthquakes. If money is not proactively being spent to locate these
wrecks, they cannot be protected. The Convention can therefore be seen as underinclusive; while it seeks to protect UCH and
to educate the world public, it simultaneously eviscerates the likelihood that many of the world's shipwrecks
will be found in the first place and does not protect wrecks from natural disasters or
man-made intrusions into the ocean.
welldocumented concern of marine scientists everywhere."
A2: UNCLOS CP
Doesn’t protect underwater heritage
Frost 4 – BA (Hons) LLB (Sydney), LLM (ANU); Principal Legal Officer, International ¶ Crime Branch,
Commonwealth Attorney-General's Department, (Robyn, “Underwater Cultural Heritage Foundation,”
HeinOnline, 2004) //JGold
Until the adoption of the United Nations Educational, Scientific and Cultural Organization
(UNESCO) Convention on the Protection of the Underwater Cultural Heritage in 2001 (the UNESCO
Convention), the international legal regime governing underwater cultural heritage had
been fragmentary. While some pre-existing cultural heritage conventions are applicable to underwater
cultural heritage, those conventions are mostly directed to the protection of historical or
cultural objects found within the land territory of a state, or are directed to particular
activities that may affect cultural property, such as trade in artefacts . Consequently, they
provided little scope for in situ protection, preservation and management of underwater
cultural heritage. 17 Of most relevance for determining jurisdiction over underwater
cultural heritage is the international law of the sea. However, the 1958 Geneva Conventions
on the Law of the Sea 18 do not contain any provisions expressly dealing with underwater
cultural heritage. The 1982 Convention on the Law of¶ the Sea (UNCLOS)¶ historical or archaeological
importance, but the coverage of the Convention in respect of underwater cultural heritage
is incomplete.
UNCLOS outdated – not flexible to solve shipping and maritime terror
Jayakumar 5 - LLM (Yale), LLB (Singapore), BBM, Advocate & Solicitor (Singapore), Deputy Prime
Minister and Minister for Law of the Republic of Singapore, (“UNCLOS-TWO DECADES ON,”
HeinOnline, 2005) //JGold
More than two decades have passed since the Convention was adopted, and more than a
decade has passed since it entered into force. The Convention has served and continues to serve us well
today. However there are new issues and concerns which require us to examine if the legal
regime is sufficiently flexible to permit the international community to respond to these
new challenges. Those of us who were closely involved in the negotiations are now an "endangered
species"! But as one of them, I recall that UNCLOS had to deal with and balance numerous
competing interests. We had to strike a balance, for example, between the interests of coastal States in
exercising sovereignty and jurisdiction over their territorial seas with the equally important interests of
other States in freedom of navigation. These old tensions still exist and will not disappear.
However, they are being tested by changes in the interests of the international community
due to advances in technology and shifts in the¶ geopolitical environment.¶ In this regard,
we should note two developments: Firstly, the sheer volume of inter-¶ national shipping has
increased dramatically. In 1980, global container volumes totalled¶ 34.8 million Twenty-foot
Equivalent Units (T.E.Us), while the corresponding figure for 2003¶ was 274.4 million T.E.Us. This
represents an eight-fold increase in a period of twenty-three¶ years. 3 In Singapore alone, we
have seen an even more dramatic nineteen-fold increase over¶ the same period. In 1980, we handled only
1.0 million T.E.Us, but container volumes at our¶ 4¶ port in 2003 reached 18.4 million T.E.Us. In 2004,
our port handled 21.3 million T.E.Us. Secondly, there are new threats and concerns post
September 11. These include terrorism, and recourse by terrorists to maritime space for
their terrorist acts; risk of proliferation of weapons of mass destruction (W.M.D.)
through maritime transportation; the security of Sea Lanes of Communication
(S.L.O.C.), for example, the Straits of Malacca has become¶ more important with the
growing demand for oil and other energy resources.¶ In addition, there have been other recent
developments posing new challenges to the inter- national community. I would list amongst them the use
of vessels for large scale trafficking¶ in people, as well as oil spills, such as the one off the coast of Spain
involving the Prestige which has revived concerns about international policy and regulation of older
single-hulled tankers.
Destroys bio-d
Oral 12 - Deputy Director of the Center for Marine Law Research at Istanbul Bilgi University, (Nilufer,
“1982 UNCLOS +30: CONFRONTING NEW COMPLEXITIES IN THE PROTECTION OF BIODIVERSITY
AND MARINE LIVING RESOURCES IN THE HIGH SEAS,” HeinOnline, 2012) //JGold
While the LOSC is recognized as the principle global instrument for oceans activities,
experts have identified a number of regulatory and governance gaps of relevance to the high seas.
For example, as it was negotiated and adopted before the 1992 United Nations Confer- ence on
Development and the Environment (Rio Summit), the LOSC neither includes principles such as
the precautionary principle and the ecosystem approach, nor makes any reference¶ to
marine biodiversity.¶ In particular, attention has been drawn to the lack of provisions in
the LOSC on area-¶ based management, including marine protected areas (MPAs) and
the need for a detailed regulatory instrument of normative character that would address issues
such as the definition and criteria for identification of high seas MPAs; the selection process;
requirements for environmental impact assessments (EIAs); listing process; coordinating the
role of existing international and regional institutions and organizations; providing monitoring and
enforce- ment; and establishing an institutional management body with decisionmaking competence. ¶ The
gaps in the LOSC are not necessarily absolute gaps. For example, the IMO London Convention on
Dumping8 has adopted resolutions and guidelines for ocean fertilization and ¶ carbon sequestration. It is
more a question of "adequacy."¶ Another significant gap concerns enforcement against third-party
states and addressing the¶ chronic problem of free-rider states. The reliance on flag state
jurisdiction to protect the marine environment of the high seas has not proven effective.
There is a need to reassess and redefine the reliance on flag state competence . The area of
the high seas is global commons wherein lies a community interest. Harm to the global commons is
a harm to the community interest. Perhaps it is time to consider whether certain acts harmful to
the high¶ seas and to the community interest should also be treated as obligations erga omnes.
DA Ans
A2: PQD DA
PQD is dead – it’s never been cited and recent cases disprove the link
Skinner 8-23-13 (Gwynne, Willamette University - College of Law, “Misunderstood, Misconstrued,
and Now Clearly Dead: The 'Political Question Doctrine' in Cases Arising in the Context of Foreign
Affairs,”)
Lower federal courts often cite the “Political Question Doctrine” when dismissing as
nonjusticiable individual rights cases arising in the context of foreign or military affairs,
especially since the 1962 case of Baker v. Carr. Similarly, such courts have inappropriately begun citing “special factors” counselling
hesitation in refusing to recognize constitutional claims (“Bivens claims”) in similar foreign policy contexts. However, a
review
of 200 years of history reveals that the Supreme Court has never applied the socalled “political question doctrine” as a true justiciability doctrine to dismiss
individual rights claims, even those arising in the context of foreign or military affairs. In fact, the Supreme
Court has almost always rejected the “political question doctrine” as a basis to
preclude adjudication of individual rights claims, even in the context of foreign or
military affairs . Although the Supreme Court has invoked a “political question doctrine” in some cases, a close
review of those cases demonstrates that rather than dismissing the cases as
“nonjusticiable,” the Court in fact adjudicated the case by finding that either the
executive or Congress acted constitutionally within their power or discretion. The recent
post-9/11 Supreme Court cases of Hamdi v. Rumsfeld, Rasul v. Bush, and Bush v. Boumediene further
demonstrate that the doctrine does not exist as a nonjusticiability doctrine in individual rights claims
(if it exists as such at all), even in those involving foreign and military affairs. In case there
remained any doubt, in 2012 case of Zivotofsky v. Clinton, the Supreme Court for all
practical purposes sounded the death knell of the application of the “political
question doctrine” as a justiciability doctrine with regard to individual rights claims, including those
arising in a foreign policy context. Rather than continuing to erroneously dismiss such cases on political question
grounds or using “special factors” as nonjusticiable, federal courts should adjudicate the claims by ruling which branch has what
power under the Constitution, and whether the branch acted within its powers. This is an important function of the courts, and one
vital to legal and political transparency and democracy. Indeed, this
is the approach the Supreme Court has
consistently taken – even if the Court has not always well-articulated this approach - and which it affirmed
in Zivotofsky.
Boumediene thumps
Stras 8 – JD, Associate Justice of MN Supreme Court (David, “The Decline of the Political Question
Doctrine,” http://balkin.blogspot.com/2008/12/decline-of-political-question-doctrine.html)
Not surprisingly, the Court has limited the application of the political question doctrine to thorny areas that are at the intersection of law and public policy, such as Congress's
With respect to the latter category, the Court has
long declined to interfere with sensitive questions of foreign policy, holding at various points in history that
ability to regulate its own internal processes and matters of foreign affairs.
such questions of when a war begins and ends and whether to recognize a foreign government and grant diplomatic immunity to its officials are all nonjusticiable political
ome scholars have recognized that the area of foreign affairs was the last
bastion where the political question doctrine had "real bite." The question I pose is what is left of
the political question doctrine after Boumediene v. Bush?¶ The answer, I believe, is not very much . As an initial
questions. In fact, s
matter, a majority of the Court has only employed the political question doctrine twice since 1964 (the year Baker v. Carr was decided) to dismiss a case, though various Justices
have endorsed its use in a variety of contexts (e.g., treaty interpretation, political gerrymandering cases, etc.). Second,
in Boumediene, the Court
quickly dismissed the Government's argument that questions of sovereignty are matters
for the political branches to conclusively decide. As the Court stated, "our cases do not hold it is improper for us to inquire into
the objective degree of control the Nation asserts over foreign territory . . . . When we have stated that sovereignty is a political question, we have referred not to sovereignty in
the general, colloquial sense, meaning the exercise of dominion or power, but sovereignty in the narrow, legal sense of the term, meaning a claim of right."
The Court
went on to conclude essentially that questions of de jure sovereignty (or a claim of right) are matters for the political branches to
decide, but that questions of de facto sovereignty (or practical control over a territory) can be
examined by the judicial branch.¶ Given that de jure sovereignty is the clearer purely legal question and that one of the lynchpins of the
political question doctrine is the presence or absence of judicially manageable standards, I find the Court's abbreviated discussion of
the political question doctrine quite significant, even astonishing . Questions of de facto sovereignty tend to
be difficult to determine because of competing indicia of control and, as a result, judicially manageable standards seem to be
fairly elusive. (However, I would freely admit that the United States' near-total control of Guantanamo Bay made the question of de facto sovereignty by the United
States in Boumediene pretty clear.)
Inconsistent application now
Jenks 10 – LLM w/ Distinction @ Georgetown
(Chris, “Square Peg in a Round Hole: Government Contractor Battlefield Tort Liability and the Political
Question Doctrine,” Berkeley Journal of International Law, 28.1)
The doctrine, which traces back to Marbury v. Madison,13 "excludes from¶ judicial review those
controversies which revolve around policy choices and¶ value determinations
constitutionally committed for resolution to the halls of¶ Congress or the confines of the
executive branch."' 14 Despite the political¶ question doctrine's longevity, over time, the
doctrine has been subject to various¶ interpretations and been inconsistently applied,
yielding more confusion than¶ clarity . 15 There have even been periods in which
commentators questioned¶ whether the doctrine still existed. 16
Bypassing the PQD’s key to heg
Aloe, 82 Paul Hubschman Aloe, Kudman Trachten Aloe, L.L.P, Hofstra LR, Fall, 82, Lexis
The Vietnam War added a new twist to the political question doctrine. Many of the lawsuits challenging the war were dismissed on the theory that the
political question doctrine precluded the courts from reaching the merits of the cases. n194 The courts, in reaching their decisions, refused to consider
whether the President was acting within the scope of his powers. n195 The three judge district court opinion in Atlee v. Laird, n196 presented the most
detailed analysis of this revised approach to the political question doctrine. The judges dismissed a challenge to the Vietnam War, refusing to consider
whether Vietnam was, in fact, a war, n197 whether Congress had taken sufficient action to authorize a war, or whether the President was justified in
maintaining American forces in Southeast Asia. The Atlee court relied on the factors set out in Baker v. Carr n198 and concluded that deciding the case
"could lead to consequences in our foreign relations completely beyond the ken and authority of this Court to evaluate." n199 The court also concluded
that it lacked "judicially manageable standards to apply to reach a factual determination whether we are at war." n200 The court noted that the "data
necessary for such an evaluation regarding the nature of our military presence would be overwhelming." n201 For the first time, the political question
doctrine prevented the courts from considering a separation of powers issue, n202 specifically, whether the President had the power to pursue the
the court held that the war making powers were committed to the political branches, it
failed to decide whether the President had the power to wage war without congressional
approval. [*550] Many judges believed that this new approach was unsupported by prior case law n203
and was unsound as a matter of expediency. It was pointed out that even in the event that the war was declared
unconstitutional, the President could still seek a declaration of war from Congress. n204 District Judge Sweigert noted that the court's
refusal to decide whether the President was usurping war making power only added to
the confusion and controversy surrounding the Vietnam War and prevented the political
process from working. n205 [T]he political question doctrine . . . [presents] no obstacle to judicial determination of the rival legislativeVietnam War without congressional approval. Although
executive claims . . . . The power to decide these claims plainly has not been lodged in either the legislative or executive branch; equally plainly, the
The criteria for judgment
whether a claim of "executive privilege" is maintainable can be found in parliamentary
jurisdiction to demark constitutional boundaries between the rival claimants has been given to the courts.
practice and, if need be, in the private litigation cases. And the framing of a remedy is attended by no special
difficulties but rather falls into familiar patterns. Each of the parties seeks power allegedly conferred by the Constitution and each maintains that
interference by the other with the claimed function will seriously impair it, the classic situation for judicial arbitrament. Arbitrament by the courts is the
The kind of conflicts that Justice Rehnquist's approach would
encourage would be detrimental to the smooth functioning of the national government.
This problem would be severe in the area of foreign affairs, where the questions are
delicate and the need is pressing to present a coherent policy to foreign nations.
Excessive infighting over which branch has what power in a given situation would
undermine a coherent foreign policy and divert attention from the policy
issues that needed to be faced. Such infighting might jeopardize the country's
position as a world leader. The courts would do well not to use a political question
doctrine rooted in concern for expediency to avoid separation of powers adjudication and,
rational substitute for eyeball to eyeball confrontation. n219
particularly, claims founded upon a statute limiting the President, such as the War Powers Resolution. n220 Rather, once it is determined that the
plaintiffs have standing to sue under a statute, the courts should proceed to apply the statute, unless it is found to be unconstitutional. The courts may
inquire into congressional power to pass the particular statute n221 or whether the statute unconstitutionally requires the courts to hear cases the fall
outside of their article III power. A political question, however, requires deference to [*555] a political branch of government. Once there is a statute, it
The role of the court should then be to consider
whether that political branch acted within the scope of its authority. If the statute is constitutional, then
is evidence that a political branch has made a political determination.
the political question doctrine should compel the courts to defer to the legislative expression and apply its commands. As Professor Firmage wrote:
When the executive and legislative branches are in open disagreement over the employment of the war powers, most of the criteria of political question
noted in Baker v. Carr point toward independent judicial review. The question of the constitutional delegation is simply which of the political branches
should prevail. The national government is not speaking with one voice and may be able to do so only after judicial determination of constitutional
The embarrassment of "multifarious pronouncements" has occurred, not by
judicial intrusion, but as a result of disputes between the political branches. n222 The courts'
competence.
disregard of acts of Congress, without considering the separation of powers question, effectively constitutes the judicial branch placing itself above the
will of Congress, thus usurping congressional power.
Courts are violating political question doctrine now—NEPA
Gartland 12
CHARLES J. GARTLAND, (B.A., University of Alaska--Anchorage; J.D., cum laude, Gonzaga University
School of Law; LL.M., George Washington University Law School) is a United States Air Force judge
advocate currently serving as the Environmental Liaison Officer for the Air Force Materiel Command¶ At
war and peace with the National Environmental Policy Act: when political questions and the environment
collide.,
http://www.thefreelibrary.com/At+war+and+peace+with+the+National+Environmental+Policy+Act%3
A+when...-a0297309170
Having a Federal court issue an injunction for NEPA violations against a Federal agency
carrying out national defense activities arguably runs afoul of the political question
doctrine . That doctrine bars courts from hearing cases dealing with matters that are committed by the Constitution or statute to another
branch of government. (6) To enjoin a national defense operation or activity because of a NEPA
violation not only elevates a procedural statute above national defense priorities, but also opens a path to elevating the
judicial branch over the executive and legislative. ¶ This article provides a background of NEPA's underlying history
and policy, and discusses the seminal Federal court cases where injunctions were sought by plaintiffs against national defense activities. In many of
those cases courts ignored or dramatically understated the agency's interests and the public interest in national defense when issuing a NEPA
In the process of issuing injunctions, courts necessarily made policy judgments that
are statutorily and constitutionally reserved to other branches of government, thereby
violating the political question doctrine. ¶ Section II provides a brief background and basic statutory
injunction.
explanation of NEPA. Section III reviews three of the core concepts seen in the cases: the political question doctrine, the related notion of national
defense exceptionalism, and the law relating to injunctions. Section IV then provides three sets of cases illustrating, respectively, situations where (1)
courts ultimately declined to issue a NEPA injunction against a national defense activity, oftentimes owing to political question doctrine concerns; (2)
a second set of cases where the courts issued a NEPA injunction, typically by ignoring or
reasoning against application of the political question doctrine; and (3) the most recent NEPA case to
arrive at the Supreme Court, Winter v. NRDC, which serves as a microcosm of when the thematic triad not protecting national defense interests from
the abuses outlined in the previous sections. Section V then concludes by discussing the remedy to the problems identified above, a national defense
exemption to NEPA, along with justifications for the exemption.
A2: Credibility DA
No international backlash to in rem jurisdiction
Segarra, Esquire Associate Johnstone Adams Bailey Gordon & Harris LLC, ’12 (Jonathan, July,
“Above Us the Waves: Defending the Expansive Jurisdictional Reach of American Admiralty Courts in
Determining the Recovery Rights to Ancient or Historic Wrecks” Journal of Maritime Law and
Commerce, 43 J. Mar. L. & Com. 349, lexis//bueno)
the
court in Odyssey. There, the court lamented: "Misconstruing and unreasonably extending Treasure Salvors I, several [*364] courts
have purported to exercise quasi in rem jurisdiction to adjudicate rights to a historical
wreck in international water," then cited both Moyer and Marex International as examples. n92 Finally, the United States Court of Appeal for the
The jurisprudential backlash against these exertions of American admiralty jurisdiction over ancient wrecks located in international waters has been clearly announced by
Fourth Circuit in R.M.S. Titanic, Inc. v. Haver n93 explained that "[q]uasi in rem jurisdiction is invoked as an interim step to obtain in personam jurisdiction," and that as such,
"[t]his case has little to do with quasi in rem jurisdiction because the wreck of the Titanic lies outside the district court's territorial jurisdiction." n94 The second exception to the
'Constructive in
rem jurisdiction' allows the enforcement of an exclusive right to salvage a wreck in
international water by expanding the traditional notion of in rem jurisdiction by
constructive possession." n95 Relating the reasoning of the Eastern District of Virginia that "the law of salvage, as part of
the jus gentium, creates a 'shared sovereignty' among nations," the court explained that
this shared sovereignty "allows the declaration of an exclusive right to salvage a wreck
outside the territorial jurisdiction," although the enforcement of these exclusive salvage rights in international waters "depends on the eventual
"res within the district" requirement of in rem jurisdiction is known as "constructive in rem jurisdiction." As the Odyssey court explained, "
arrival of the person or property at issue within the territorial jurisdiction" of the court, or in other words, the salvage must be successful. n96 Importantly, the court explicitly
stated that the law of finds, under which the salvor would obtain title to the wreck, is not part of the jus gentium and therefore not an available remedy to an American court
adjudicating the rights to a shipwreck located in international waters. n97 Stating that "[n]o substantial benefit accrues from an expanded extra-territorial jurisdiction that
allows a court to grant exclusive title to a wreck in international water on an unopposed default judgment," the court then exhibited a welcome deference to international
relations, explaining that "a wreck outside the territorial waters of the United States is more likely to belong to a foreign state," and such an award of title "implicates United
As opposed to the doctrine of quasi in
rem jurisdiction, constructive in rem jurisdiction has the benefit of a long history in
American jurisprudence. [*365] In The Brig Ann, n99 for instance, the Supreme Court stated: "In [o]rder to institute and perfect proceedings in rem, it
is necessary that the thing should be actually or constructively within the reach of the [c]ourt." n100 The Court continued by explaining
that a res "is actually within [a court's] possession when it is submitted to [its] process"
and that "it is constructively so, when, by a seizure, it is held to ascertain and enforce a
right of forfeiture which can alone be decided by a judicial decree in rem." n101 Perhaps because of this
illustrious history, constructive in rem jurisdiction has benefited from a better overall
reception from the scholarly community than its ancestor, quasi in rem
jurisdiction. Stating that the doctrine "responds well to the reality that the res of an
imperiled vessel cannot itself be brought into a courtroom for adjudication even though
some proof of a claimant's possession of it is necessary," Professor Nafziger finds particular comfort
States foreign policy, constitutionally committed to the executive branch of government." n98
in the fact that "[c]onstructive in rem jurisdiction is only imperfect or inchoate, 'falling short of giving the court sovereignty over the wreck.'" n102 After recounting the language
from the Fourth circuit in the Titanic litigation stating that the parameters of the doctrine are "'compelled by a recognition of the sovereign limits of the United States and of the
open nature of the high seas,'" Nafziger notes: "[T]he appellate court acknowledged that constructive in rem jurisdiction must be shared with foreign legal systems and therefore
can result only in a declaration[,] rather than effective enforcement of salvage rights by an admiralty court." n103 This recognition of the limits of American courts prompts
express approval of the doctrine: "Constructive in rem jurisdiction is
therefore not simply a construct of federal civil procedure[,] but a
confirmation of the appropriate role of national courts in an emerging
international regime to govern the underwater cultural heritage." n104 Maritime scholar
Bruce Alexander has also fully embraced the doctrine of constructive in rem jurisdiction, even though he envisions it as slightly less restricted than Professor Nafziger: Once
some object from the shipwreck is recovered and literally brought into the territorial
jurisdiction of the court, the salvor's maritime lien and the court's in rem jurisdiction
are perfected. The court's jurisdiction should not, however, be narrowly limited to the recovered objects. So long as the salvor
Nafziger's
continues to demonstrate ability, intention, and 'success' in recovering objects [*366] from
the shipwreck, the court should have constructive in rem jurisdiction, which is sufficient
to protect the first salvor from interlopers. The doctrine of necessity also supports the exercise of [constructive in rem] jurisdiction over
the shipwreck[,] because the court should have the power, and perhaps the obligation, to provide a
centralized forum for the adjudication of all disputes relating to the salvage of the
shipwreck. If interlopers are allowed to carry off or destroy objects from the wreck, multiple forum litigation may result. At a minimum[,] the in rem jurisdiction of the
court will be impaired, and the court should have the power to preserve its jurisdiction when it is properly invoked and perfected. n105 Turning directly to the text of the Fourth
Circuit's opinion in Haver, it appears the Court's reticence to exert extra-territorial jurisdiction is less apparent than Nafziger would have one believe, however, lending some
credence to Mr. Alexander's seemingly more expansive view of the constructive in rem doctrine. Tasking itself with the inquiry of "whether a court in admiralty can award
salvage rights in a shipwreck outside of United States' territorial waters," n106 the court then stated its view of the proper contours of in rem jurisdiction: "Because in rem
actions adjudicate rights in specific property before the court, judgments in them operate against anyone in the world claiming against that property." n107 Clarifying its
statement slightly, the court added that "while a . . . court having jurisdiction over a res is entitled to adjudicate salvage rights with respect to the res, when enforcing orders to
give effect to those rights against a third party who . . . challenges them, the court must obtain in personam jurisdiction over the third party though the service of process." n108
A2: Salvaging Bad – General
Absent the aff, current salvaging will operate under the rule of finds which
encourages secrecy
Werner, JD Candidate University of Miami Law, ’13 (Dave, Summer, “Piracy in the Courtroom: How
to Salvage $ 500 Million in Sunken Treasure Without Making a Cent” University of Miami Law Review, 67
U. Miami L. Rev. 1005, lexis//bueno)
2. A Duplicitous Alternative Watching two Spanish C-130 cargo planes laden with the 595,000 silver and golden coins salvaged by Odyssey Marine depart Florida for Spain
prompted Melinda MacConnel, Vice President and General Counsel [*1031] of Odyssey Marine, to predict the rise of a new alternative to bidding on salvage contracts prior to
In the future no one will be incentivized to report underwater finds... .
Anything found with a potential Spanish interest will be hidden or even worse, melted
down or sold on eBay." n160 Though this sentiment likely was borne out of frustration and anger, a kernel of truth lay behind her bitter words. When
contrasting the law of finds and law of salvage in Hener v. United States, the court specifically addressed how the law of finds encourages
devious, secretive behavior while the law of salvages encourages transparency and
cooperation between the salvor and the title holder of the ship. n161 As Odyssey Marine
witnessed half a billion dollars in treasure it salvaged fly across the ocean without
receiving even a salvage award, the company's legal counsel verified the incentive to
forego decent and customary activities for clandestine and devious ones.
locating a sunken vessel: "
Ban on salvaging just means it happens in secret
Coleman, PhD Art History from Rutgers, ’13 (Patrick, “UNESCO and the Belitung Shipwreck: The
Need for a Permissive Definition of "Commercial Exploitation” George Washington International Law
Review, 45 Geo. Wash. Int'l L. Rev. 847, lexis//bueno)
the prohibition of "commercial
exploitation" argue that the 2001 Convention's inflexibility could actually increase the frequency of
clandestine, unscientific salvage. n97 Such critics assert that a salvage company unable to
profit through collaboration with a State, even when employing professional archaeologists and using best practices, will
be more likely to not disclose their finds, recover artifacts in secret without documenting
their activities, and sell historically significant artifacts on the illicit mark et. n98 There is no data,
iii. Criticism of the Prohibition of "Commercial Exploitation" Some critics of
however, that would substantiate or disprove such an argument. n99
A2: Salvaging Bad – Culture
Sanctity of sunken vessels is preserved
Werner, JD Candidate University of Miami Law, ’13 (Dave, Summer, “Piracy in the Courtroom: How
to Salvage $ 500 Million in Sunken Treasure Without Making a Cent” University of Miami Law Review, 67
U. Miami L. Rev. 1005, lexis//bueno)
A. Differing Business Models, but Similar Reverence for Sunken Vessels As the reach of salvage companies extends to greater depths, preserving historical wrecks and respecting
the dignity of the souls lost aboard the sunken vessels have become key issues for those exploring the depths of the ocean. These sacrosanct tendencies must be balanced against
Odyssey Marine relies on treasures salvaged from the
sunken vessels it finds to turn a profit, please its stockholders, and remain a viable
corporation. However, one of the company's founding beliefs is that "good business and
sound archaeological practice can co-exist and thrive together." n134 To put his belief into practice,
Odyssey Marine balances [*1027] profitability with the preservation of historical shipwrecks
and relics. The riches available to Odyssey Marine and its competitors were scarce until recently; less than forty years ago, salvage firms could only search and salvage
vessels in several hundred feet of water. n135 Today, Odyssey Marine wields impressive and expensive technology ,
the business of deep-sea exploration. As a publicly traded firm,
including submersible robots (known as ROVs - remotely operated vehicles), side-scan sonar, and magnetometers, that it implements to scour the ocean bed twenty-four hours a
day, seven days a week. n136 Odyssey Marine's viable recovery depth is now limited only by the capability of the firm's ROVs, which are currently rated to 8,500 feet. n137
These innovations have effectively unlocked a broad swath of the ocean bed for
exploration, and, correspondingly, they unlocked opportunities for salvage firms to
discover and reclaim lost shipwrecks. Despite this falsely presumed propensity to chase treasure and profits, Odyssey
Marine is neither a raider of sacred tombs nor a plunderer of sunken treasure. When
surveying a find, Odyssey Marine maps every minute detail of an entire salvage site , including
items as small as buttons. n138 Following its 2008 discovery of the HMS Victory, a British warship, Odyssey Marine planned to retrieve a cannon from the wreck, but in
preparation for this extraction, the company discovered skeletal remains next to the cannon. n139 Despite searching "hundreds of wrecks" in the English Channel, the Victory
was its first encounter with human remains in this condition. n140 Although Odyssey Marine wanted to recover the remains for anthropological purposes, the company allowed
the remains to lay undisturbed, at behest of the Royal Navy and Britain's Ministry of Defense. n141 Though this exercise in restraint represents the firm's single encounter with
Odyssey Marine's treatment of
the Victory follows the noble example set during discovery of one of the most, if not the most, famous shipwrecks of all
human remains, it demonstrates that Odyssey Marine is not ruthlessly scouring the seabed for any and all treasure.
time - the Titanic. Robert Ballard, leading a team of [*1028] deep sea explorers, discovered the Titanic in 1985. n142 Upon making this historic find, his first impulse was to loot
the site for the valuable treasures that lay within. However, he suppressed his inclination to substantially profit from his fortuitous discovery and chose not to disturb the site.
Deep sea exploration and salvage firms, despite opinions to the contrary, do exhibit
an ability to weigh the profits of the firm against intangible benefits, such as the benefit
of preserving history. The Eleventh Circuit's holding restricts Odyssey Marine's ability to
synthesize the seemingly contradictory concepts of "good business" and "sound
archaeological practice" by drastically reducing the sheer number of shipwrecks
available for salvage. Rather than allowing exploration and salvage firms the leeway to explore wrecks and independently determine the identity and
n143
importance of a wreck, the Eleventh Circuit's holding effectively presumes that the salvage firm has malevolent intentions and creates an impenetrable protective scheme for the
shipwreck. The court accomplished this by disallowing the severance of cargo from its ship and applying sovereign immunity to activities tenuously connected to a sovereign's
This holding disincentivizes for-profit firms from searching the ocean bed for
these shipwrecks as the template for a sovereign to seize a rediscovered wreck has been
laid forth by the Eleventh Circuit.
duties. n144
Some sort of commercial role is imperative – it can be combined with
archaeological significance – and solves tech
Milmo ‘9 (Cahal, 6-9-9, “Why is there a storm brewing over the right to plunder shipwrecks?,” The
Independent, http://www.independent.co.uk/news/world/politics/why-is-there-a-storm-brewing-overthe-right-to-plunder-shipwrecks-1700207.html)//ER
So is this archaeology or piracy? Shortly after Odyssey announced in 2007 that it had discovered (and
relocated to Florida) the Black Swan treasure, its vessels were confronted by the Spanish navy and the
country's culture minister talked darkly of the need to "combat pirates". Ever since debate has raged
about whether the exploration of wrecks is serious archaeology or naked profiteering
behind a veneer of hi-tech science. Koichiro Matsuura, director general of Unesco, said:
"Technical progress in detection and diving and escalating prices on the international
market for objects snatched from the deep have led to the loss of many particularly
valuable archaeological sites. The problem is further aggravated by the overly prevalent
view of such archaeological sites as "treasures" that can be discovered or appropriated."
Companies such as Odyssey insist there is a valid – and necessary – alternative. They
insist that a rigorous archaeological examination of each wreck can be legitimately
combined with a sale of surplus recovered artefacts such as coins or cannon to meet
their running costs and turn a modest profit. Greg Stemm, the advertising executive turned
founder of Odyssey, calls this "marrying archaeology with a business model".
Aff key to archaeological integrity
Alexander, Professor Law at University of Baltimore, ’89 (Bruce, January, “Treasure Salvage Beyond
the Territorial Sea: An Assessment and Recommendations” Journal of Maritime Law and Commerce, 20
J. Mar. L. & Com. 1, HeinOnline//bueno)
Protection of priority is
important for the treasure salvor,9 it is important for preserving the archaeological integrity of
the shipwreck, 10 and it is important for maintaining public peace and good order. Protection of
priority is important for the treasure salvor because he wants to have an opportunity to effect a
thorough salvage of the shipwreck. I" To do this the salvor needs some effective legal means to
protect his operation from interlopers.12 The treasure salvor will proceed quickly and
secretly, however, if the admiralty court cannot or will not protect his operations from
pirates, thieves and competing salvors. 13 Protection of priority is important for preserving the shipwreck's archaeological integrity
because sound archaeological procedures require substantial amounts of time and energy .14
First salvors will not expend the time and energy that is needed for sound
archaeology unless they have some effective legal means to protect their
operations. Additionally, by protecting the first salvor's priority, the admiralty court
encourages the treasure salvor to file a salvage suit.' 5 By filing suit the treasure salvor can obtain clean title' 6 to salved objects
The importance of having an admiralty court protect the priority of the first treasure salvor cannot be overstated.
and can protect the priority of his operation. Once the treasure salvor files his salvage suit, the court can ensure that the treasure salvor preserves the shipwreck's archaeological
Protection of priority is important for public peace and good order because
competing salvors have a tendency to resort to violence and dangerous behavior.18 In such
circumstances there is not only a significant risk of personal injury and property damage, but there is also a significant risk of harm to
the shipwreck's archaeological integrity. 19 Notably, the problem of intervening/competing salvors is not unique to treasure salvage
integrity.17
operations. Legal rules have developed that protect the priority of the first salvor over all subsequent and intervening salvors in conventional salvage situations.20 So long as the
first salvor demonstrates progress, intent, and ability, his operations are protected by the admiralty court. 21 The admiralty court can protect the priority of the first salvor within
the TS22 because the shipwreck and the salvors are within the territorial jurisdiction of the court. 2 3 For treasure salvage operations in areas beyond the TS, an admiralty
court's ability to protect the priority of the first salvor is not so obvious. By definition, the shipwreck is not within the court's territorial jurisdiction. Additionally, the court may
existing legal
doctrines allow an admiralty court to assert in rem jurisdiction over an abandoned
shipwreck located beyond the territorial sea. The writer's thesis is that an admiralty court can rely on
the doctrines of constructive presence and necessity to enjoin intervening salvors. 25 The
or may not have in personam jurisdiction over the competing or intervening salvor(s). One writer argues cogently,24 however, that
doctrine of constructive presence relies heavily on in rem theory and admiralty practice. For ordinary in rem claims, suit can be filed when the res "is or will be" within the
territorial jurisdiction of the court. 26 In other words, the presence of the res within the territorial jurisdiction is not a prerequisite to the filing of an in rem suit, which in turn
a treasure salvor should be allowed to file his claim and
invoke the admiralty jurisdiction of a federal district court into whose district the res
will be taken.
invokes the jurisdiction of an admiralty court. Correspondingly,
A commercial exception is key to the exploration process
Celizic ‘9 (Mike, “Sunken treasure stirs international booty battle,” TODAY News, 3-24-9,
http://www.today.com/id/29856469#.U7r5AvldVCM)//ER
But what Stemm, the CEO of Odyssey Marine Exploration, does have in a warehouse somewhere in Florida is a haul of hundreds of thousands of coins — gold pieces of eight and
silver coins — that the Spanish government says belongs to the people of Spain. A U.S. District Court judge who has been hearing arguments in the case since last year is
expected to rule soon on who is the rightful owner of what is reported to be the largest treasure ever recovered from the deep. In an appearance Tuesday on TODAY, Stemm told
You know what? Let’s
do a split here. You should have all the cultural artifacts.’ We said, if this is a Spanish
shipwreck, we think that the cultural artifacts should go to Spain. We just think we
should be properly rewarded for spending the money, doing great archaeology.” Stemm wouldn’t
say exactly what it cost to salvage the treasure. “It cost millions and millions of dollars to do this work ,” is all he would tell
Ann Curry that his company has already suggested to the court and Spain what it feels is a reasonable solution: “We suggested, ‘
Curry.
K Ans
US Key
The alternative to US jurisdiction is worse
Segarra, Esquire Associate Johnstone Adams Bailey Gordon & Harris LLC, ’12 (Jonathan, July,
“Above Us the Waves: Defending the Expansive Jurisdictional Reach of American Admiralty Courts in
Determining the Recovery Rights to Ancient or Historic Wrecks” Journal of Maritime Law and
Commerce, 43 J. Mar. L. & Com. 349, lexis//bueno)
The Eleventh
Circuit, in Odyssey Marine Exploration, Inc. v. The Unidentified Shipwrecked Vessel, n136 determined the salvage rights to
the Nuestra Senora de las Mercedes, a famed Spanish Royal Navy frigate that sank 100 miles west of the Straits of Gibraltar during a naval confrontation with England
in 1804. n137 There, the court initially noted that a court must have "'exclusive custody and
control'" over any given shipwreck in order to "'adjudicate rights in it that are binding
against the world'" n138 and that "'[n]o in rem suit can me maintained without a valid arrest of the res by the marshal,'" n139 but then apparently satisfied
The Fourth Circuit's tacit approval of this declaration of the expansive reach of American admiralty jurisdiction is not unique, however.
itself with the simple observation that "[t]herefore, when a party files an in rem complaint, the court issues a warrant for the arrest of the res and the res remains in the court's
incredibly, the Eleventh Circuit completely declined to
trouble itself with the slightest discussion of the application of its extraterritorial
jurisdiction, instead strongly implying that the "symbolic arrest" effectuated by the salvage company's placement into the court of a [*372] small bronze block
custody for the remainder of the proceedings." Somewhat
recovered from the shipwreck in question indeed complied with these jurisdictional mandates and therefore providing for perhaps the broadest exercise of American jurisdiction
Although the view of the various federal courts seems fairly
equivocal about the exact limits of the extraterritorial jurisdiction of American admiralty
courts under the constructive in rem doctrine, it should be noted that even one of the commentators
most opposed to America's unilateral control over international wrecks cannot deny that
the Fourth Circuit is "the vanguard of progressively defining U.S. admiralty courts as
emerging fora in [the] litigation of internationally [-]significant historic wreck." n141 The
"unique development[] of salvage law" by the admiralty courts of any nation, it should
here be noted, "provide an alternative to lawlessness on the frontier of
underwater cultural heritage and thereby fill a void." n142
over international shipwrecks yet. n140
Economic Motivations Key
Economic motivation for salvaging inevitable and doesn’t trade off with
cultural protection
Neil, JD Candidate NYU, ’10 (Jeremy, “Sifting Through the Wreckage: An Analysis and Proposed
Resolution Concerning the Disposition of Historic Shipwrecks Located in International Waters” NYU Law
Review, 55 N.Y. L. Sch. L. Rev. 895, HeinOnline//bueno)
The prospect of discovering a shipwreck containing chests full of gold and silver coins has driven a large number of companies and individuals to search for long-lost wrecks. 52
Archaeologists argue that this goal of many treasure hunters is to blame for the loss of countless historical artifacts. Archaeologists portray the typical treasure hunter as
destroying anything blocking his path to a potential treasure, including artifacts that could be used to tell the story of how the ship found its way to the bottom of the ocean in the
first place. For example, a clay pot could easily be thought of as valueless to a treasure hunter and destroyed, but that same pot could provide an archaeologist with information
relating to where the ship began its journey, where it stopped along the way, and who and what may have been on board. While the incentive of turning a profit motivates
the ability to make a profit should not mean that the cultural aspects of
a wreck, which may be of little economic value, must be destroyed in the process. The economic
motivation of salvage companies appears to be necessary for their survival
as the process of searching for and salvaging a wreck is prohibitively
expensive.s3 Companies spend years researching in order to pinpoint the location of a
wreck. Once the location is identified, a company must employ an arsenal of ships and
hightech instruments just to find out where the wreck lies on the ocean floor. Companies can spend
millions of dollars in simply attempting to locate a wreck, let alone actually finding and salvaging one. 54 The profit incentive
motivating these companies has caused a technological boom in the salvage
industry and is responsible for locating more wrecks than ever before. If
finding a wreck were not profitable, there would be less competition amongst salvors
and less technological innovation. More salvors searching for wrecks could mean more destruction of
cultural artifacts, but it could also mean more technological advancements and more wrecks being
found. A balance of all competing value preferences, which does not currently exist under the
regime of U.S. salvage law, needs to be achieved for the benefit of all parties concerned.
commercial salvage companies,
Commercial incentives are key to reaping economic benefits and finding
ships
Regan ‘5 (Rob Regan, presently completing his LL.M. thesis, Sovereign Immunity and the Lost Ships of
Canada's Historic Merchant Fleet, at Queen's University, Ontario. LL.B. 2004, Queen's University; B.A.
1988, University of British Columbia, “When Lost Liners Become Found: An Examination of the
Effectiveness of Present Maritime Legal and Statutory Regimes for Protecting Historic Wrecks in
International Waters with Some Proposals for Change,” 29 Tul. Mar. L.J. 313, 314-15, 2005, Lexis)//ER
VI. What Are We Really Protecting? In the search for a comprehensive international agreement on what should be done with these wrecks, it is crucial to address what needs to
be protected. In considering the regimes that govern various legal and policy aspects of these historic sites, the situation is not unlike that envisioned in the children's poem
about the six blind wise men describing the elephant, in that, separately, the various aspects of historic wreck seem to be addressed effectively by legislation and case law, but
If technology had not improved, most of
these wrecks would have remained lost forever, another tale of a ship and its treasure
lost to the perils of the sea. What drives the interest in exploring these wrecks? If the
interest is in scientific and historic exploration, and the wreck and its contents have no
salvage value, those who embark on their exploration, with numerous research grants
and other monetary gifts, will take their [*350] pictures, make their notes, and record
their observations for posterity. They have little interest in the wholesale removal of
items from the wreck and are unlikely to return to it in the future. If the interest is in the form of a commercial
salvage venture or for the seeking of sunken treasure, such activities will be heavily funded from market sources
expecting a good return on their money, and there will be repeated invasive activities
spawned by the possibility of finding treasure. Sometimes wrecks attract both sorts of
nothing addresses the matter in its entirety. On the other hand, is there any real need to?
interest. Ultimately though, everyone loses interest over time. Deep-sea historic shipwrecks are expensive to visit and can only be photographed and documented so
often. Once they are stripped of their treasure and the public loses interest, there will be no economic reason to continue conducting recovery work, and commercial salvors will
ultimately give the picked-over remains back to the sea, returning these wrecks to the realm of folklore until a new generation returns to visit them again. Since this phenomenon
is already occurring and the oceans are running out of their inventory of famous treasure-bearing wrecks, is there a need for more protection than we have already? Or is such a
movement simply akin to closing the hatches after the ship has already been swamped?
Commercial services are tied to the discovery of vessels in the first place –
salvors key
Segarra ’12 (Jonathan Joseph Beren Segarra, Esq. Associate, Johnstone Adams Bailey Gordon & Harris
LLC. LLM in Admiralty 2011, Tulane University Law School; JD 2008, University of VirginiavSchool of
Law; B.A. 2004, Duke University, “Above Us the Waves: Defending the Expansive Jurisdictional Reach of
American Admiralty Courts in Determining the Recovery Rights to Ancient or Historic Wrecks,” July
2012, Journal of Maritime Law and Commerce, Lexis)//ER
The three listed exceptions to Article 4 "detract from its clarity," and represent a "compromise" aimed at obtaining the ratifications of both the UK and the United States. n240
Under these exceptions, it seems that the application of the American law of salvage is not necessarily forbidden by the 2001 UCH Convention, especially when the addition of
the Fourth Circuit's seventh factor for determining salvage awards is considered. n241 Furthermore, Article 2 of the Annex to the Convention, stating that "[t]he commercial
exploitation of underwater cultural heritage for trade or speculation or its irretrievable dispersal is fundamentally incompatible with the protection and proper management of
t]his Rule cannot be interpreted as preventing
... the deposition of underwater cultural heritage, recovered in the [*388] course of a
research project in conformity with this Convention, provided such deposition does not
prejudice the scientific or cultural interest or integrity of the recovered material or result
in its irretrievable dispersal," among other guidelines. n242 This rule likely "reflects the difficulty of
divorcing the provision of commercial services during an excavation from the
justification for that excavation," n243 meaning that even the 2001 UCH Convention, drafted specifically to prevent the salvage of ancient or
historic vessels in the world's oceans, realizes that without salvors, these vessels would remain hidden from
public knowledge below the waves.
underwater cultural heritage," is immediately qualified, as the Annex states that "[