La disputa por el galeón San José y su pecio en los marcos jurídicos colombiano e interamericano

Abstract

This research aims to develop an analysis of the legal implications of the findings of the San José Galleon and its wreck, found in December 2015, located at 76 ° 00 '20' 'W 10 ° 13' 33 ”N a 50 KM of the beach and 600 meters deep on the coasts of the Colombian territory, in order to give a legislative and jurisprudential account of the problems that have been triggered in relation to the rights to private property, collective property and intellectual property of the ship and its cargo. As of the current date, there is a dispute with the company Sea Search Armada (SSA) for the domain granted by the Supreme Court in the judgment of July 5, 2007 on 50% of the treasury of San José due to the work done for the discovery of the ship and the treasure. Another scenario is the controversy over the wreck of the San José Galleon between the indigenous people of Bolivia, the Qhara Qhara Nation and the Colombian government, regarding the right to collective and cultural property that is generated over the movable property (the wreck) of the ship. Also, there is the relevant academic and scientific discussion on intellectual property and the right to scientific research, alleged by Colombian researchers according to the possible destination of the research of the Galleon San José and its wreck in Spain, ignoring the rights, interests, purposes and possibilities of research in Colombia. And finally, there is a possible controversy between Spain and Colombia over the ship and its cargo, which to date is non-existent, but has been constructed and reported by the media in accordance with the property rights generated by the flag and history of the ship. For this reason, a comprehensive legal analysis is proposed, from the description and systematization of the national and international legislation in force and applicable to the case, as well as the elaboration of jurisprudential lines, as the central method of this investigation, to account for the precedents issued nationally by the Supreme Court of Justice, the Council of State, the Constitutional Court and internationally by the Inter-American Court of human rights. This has not been done in investigations of the ship and its wreck, except for two previous investigations: the first carried out by Mateus (2016), which is limited to studying the controversy over the private property right of the San José Galleon between Colombia and Spain, in accordance with International Law; and the second developed by Mancebo (2017), where the protection of underwater cultural heritage in Colombia is proposed. Finally, it is important to highlight the importance of work to contribute to the institutional chairs of Anthropology and Legal Anthropology, in the case of the latter, it is guided by the teachers who lead this research, as well as for research in the field of Law and Social Sciences on the San José Galleon and its wreck.