The basic arguments I see coming from Amalea here are:
- Baldric Verdigris was not a pirate
- Verdigris held a letter of marque from the King of Amalea
- The Cargast was granted to Verdigris
- The King and Treasury supplied the cannons
- Amalea has jurisdiction via flag-state to recover outside their territorial/contiguous zone.
- The contents of the wreckage are Amalea’s by nature of the flag-state jurisdiction.
I added what I believe the three main arguments are from the Amaleans concerning the Cargast wreckage and its cargo. Anything else you guys see as potential arguments?
In the 16th century, according to Grotius,72 de Victoria73 and Ayala,74 any booty seized by a belligerent in warfare became the lawful property of the captor State,75 provided it was acquired following an authorisation of hostilities and for a just cause. As to the requirement of just cause, Brownlie states that between 1494 and 1648, the theory of just war developed, ‘according to which a war might be just on both sides, [with] one prince believing in good faith that his cause was just when objectively justice lay with the other party … in substance therefore the just war doctrine [was] deprived of any limiting effect.’76 Consequently, the legality of Verdigris’ hostilities in Helios were not open to substantive challenge according to the law in 1510 provided that he held valid authorisation on behalf of the King of Amalea.77 Verdigris’ letter of marque constituted such an authorisation.78 Letters of marque were historically only issued in connection with an authorisation of hostilities against a sovereign79 and consisted of a commission by a sovereign to pursue hostilities individually.80 As Verdigris had authorisation from the King of Amalea to commit hostilities when he sacked Helios, the artifacts he seized became the lawful property of Amalea.
“Consequently, the legality of Verdigris’ hostilities in Helios were not open to substantive challenge according to the law in 1510 provided that he held valid authorisation on behalf of the King of Amalea.77 Verdigris’ letter of marque constituted such an authorisation”
Verdigris was authorized (letter of marque) by the King “to bring glory to the Kingdom of Amalea” and the sacking of Helios did not bring glory to the Kingdom of Amalea. The sacking of Helios was an unsanctioned act of piracy and genocide that was conducted to convey financial benefits to the private financial backers of the Cargast’s voyage.
Article 101
Definition of piracy
Piracy consists of any of the following acts:
(a) any illegal acts of violence or detention, or any act of depredation, committed for private ends by the crew or the passengers of a private ship or a private aircraft, and directed:
(i) on the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft;
(ii) against a ship, aircraft, persons or property in a place outside the jurisdiction of any State;
(b) any act of voluntary participation in the operation of a ship or of an aircraft with knowledge of facts making it a pirate ship or aircraft;
(c) any act of inciting or of intentionally facilitating an act described in subparagraph (a) or (b).
Ritania cannot claim the benefit of having its interests taken into account on an equitable basis in accordance with Article 59, as Amalea, a non-Party to UNCLOS, is not bound by that provision.
UNCLOS contains two provisions concerning underwater cultural heritage: Article 149 and Article 303. As Amalea is not a Party to UNCLOS it cannot be bound by either of those provisions.90 Even if those provisions are reflective of custom, they are not applicable in the circumstances. Article 149 only concerns underwater cultural heritage located in ‘the Area’, which refers to the deep seabed beyond a State’s national jurisdiction.91 This article is inapplicable as the Cargast was located in the Malachi Gap, an area over which Amalea and Ritania share jurisdiction.92 Article 303(1) requires States to cooperate with respect to the protection of archaeological and historical objects at sea. The duty to cooperate in Article 303(1) is not of a ‘fundamentally norm creating character’93 and so cannot reflect custom.94 Even if it is customary, the scope and content of the duty to cooperate is not defined in Article 303(1) and is ‘far too general and vague to have any significant normative content’.95 Moreover, UNCLOS provides that ‘nothing in this article affects the rights of identifiable owners [or] the law of salvage’.96 Therefore, no relevant rule in UNCLOS affected Amalea’s right to salvage.
As a non-party to the UCHC, Ritania cannot enforce the provisions of that convention against Amalea.97 Further, no relevant provisions of the UCHC have yet attained customary status.98 In any case, Amalea’s activities directed at the Cargast were in conformity with the objectives and general principles of the UCHC.99 First, preservation of the artifacts in situ was not possible due to the danger posed by the imminent collapse of the hull of the Cargast.100 Second, Amalea did not recover the objects for commercial gain; to the contrary, it made a unilateral declaration that it would hold the objects ‘in trust for all humankind.’
The Salvage Convention applies in this case. A State may make a reservation under that convention to exclude ‘maritime cultural property of prehistoric, archaeological or historic interest’104 from its ambit. Neither Amalea nor Ritania have made such a reservation, therefore the artifacts are subject to the law of salvage.105 Under the Salvage Convention, Amalea, the sovereign owner of the Cargast, was solely entitled to control and direct recovery of the wreck and its artifacts.106 Further, Amalea conducted a valid salvage operation under the ambit of the Salvage Convention. The Cargast met the requirement in the convention that the property be ‘in danger’, as her hull structure was at risk of catastrophic collapse.107