Author: M.M. Losier

Abstract

Cloaking the cargo of sunken colonial vessels with flag State immunity creates pro tempore resolutions through procedural impediments that inevitably reward illegal acts, revitalize colonial policies and extend periods of unjust enrichment. Immunity should only be extended when conventional law requirements are met and applied in conformity with any rules applicable between the parties in light of present-day conditions. Absent immunity, States with verifiable links could argue merit-based claims in unbiased fora that could rely on modern legal principles, rather than those prevailing when the cargo sank, to adjudicate contemporary disputes. Merit-based resolutions would address the Pandora’s box resulting from the convergence of advances in underwater technologies and the socio-political shifts that occurred since the cargo sank. Historically inert pauses under water unique to other legal quagmires offer an inimitable opportunity, when immunity is restricted, to adhere to modern ethical principles and to halt the lingering effects of condemned regimes.

In: The International Journal of Marine and Coastal Law