Naval and merchant marine shipwrecks from World War II rest on the ocean floor of the South Pacific and the South China and Java seas, bearing silent witness to extreme violence and catastrophic loss of life. The sense of nations has long been that sunken warships and the sailors who perished in them should be treated as sacrosanct war graves to be left undisturbed. But startling new reports assert that unscrupulous Chinese and Southeast Asian scrap metal dealers in league with modern-day pirates are desecrating and plundering shipwrecks at an alarming rate for the valuable materials from which the ships were made.
The clandestine breaking up and scrapping of underwater wrecks following violent conflicts is an age-old pursuit. In eras past, treasure hunters searched for sunken vessels engaged in commerce or privateering to recover their cargoes and historical artifacts of interest to collectors. When more robust salvaging became viable with technologies of the day, some parts of shipwrecks were recovered that were particularly valuable, such as bronze propellers or artillery pieces. Otherwise, the superstructures were thought to be of little value and sunken military ships and the crews that went to their eternal rest in them were left largely undisturbed for wont of “treasure”. The ushering in of the nuclear age and atomic testing changed that lack of interest in underwater wrecks from World War II.
Unlike post-World War II shipwrecks, mid-20th century sunken vessels are particularly prized by metal scrappers for three reasons: (1) there are a lot of them waiting to be exploited and, with the exception of sunken submarines, the locations are well documented in naval records and on nautical charts; (2) the metallurgy used in building the ships is of a much higher quality than that used in ships during the late 19th and early 20th centuries; and (3) more importantly, the steel pre-dates atomic blasts, which makes the steel, known as “low background steel”, highly desirable for the fabrication of scientific instruments and medical equipment. Once the radiation-free steel and other metals enter the recycling pipeline, it is next to impossible to trace the origin of the metals or hold accountable the illegal scrappers and corrupt scrap metal brokers/dealers desecrating warship wreckage for commercial profit.
The Guardian newspaper reported in November 2017 that dozens of World War II shipwrecks have been illegally and irreparably desecrated by metal scrappers posing as fishermen operating off the coasts of Malaysia, Singapore, and Indonesia.[1] Monitoring efforts indicate that more than 40 ships containing the remains of more than 4,500 sailors and servicemen from Great Britain, the United States, Australia, the Netherlands, and Japan have been partially or totally destroyed.[2] The UK’s Daily Mail reported in August 2018 how Chinese-owned salvage barges drop massive anchors onto the wreck sites to smash the superstructures into pieces that can then be hauled to the surface, transported on to Indonesia where it is processed, and then sent on to China or disappears into the steel market.[3]
Some of the ships desecrated are storied vessels sunk during epic battles early in World War II. The HMS Exeter, HMS Encounter, and HMS Electra, lost during the Battle of the Java Sea in 1942 contain the remains of more than 150 sailors, and the battlecruiser HMS Repulse and the battleship HMS Prince of Wales, which Japanese aircraft sunk in the South China Sea off the coast of Malaysia on December 10, 1941 with the loss of more than 800 naval personnel, have been pilfered by scrappers. One Australian warship, the HMAS Perth, sunk by Japanese attacks in the Battle of Sundra Strait off Java early in 1942 with 353 killed, was discovered in 2013 to have lost much of its superstructure, turrets, decking, and munitions to salvagers from Indonesia that used explosives and barges mounted with crane grapplers to break up the wreck.[4]
Dutch and American warships lost in the Battle of the Java Sea with hundreds of sailors killed have also been partially damaged or have disappeared completely. In late 2016, researchers discovered that the Dutch cruisers HNLMS De Ruyter, HNLMS Java, and the destroyer HNLMS Kortenaer had been pilfered by unknown scrappers. Sonar readings indicated that “although the imprints of the three wrecks were there, two of the ships had completely vanished” and that while the Kortenaer was still present, a “huge chunk” of it had disappeared.[5] The American submarine USS Perch, which was scuttled without loss of crew, disappeared at the hands of illegal salvagers sometime between its rediscovery in 2006 and its confirmed disappearance in 2016, and the cruiser USS Houston, sunk in the Battle of Sundra Strait with the loss of some 650 sailors and marines, was discovered during a survey in October 2015 to have been extensively pilfered by illegal scrappers.[6]
Japan has also been victimized by illegal scrappers, including the pillaging of three cargo vessels, the Kokusei Maru, the Hiyori Maru, and the Higane Maru, all three torpedoed and sunk in the Java Sea on the same day in 1944 with the loss of 128 sailors.[7] Known for many years as the Usukan wrecks by recreational divers and treasured for their pristine condition and rich marine life, the wrecks have been illegally salvaged for their scrap metal and disappeared.[8]
Preservation and Protection under Domestic and International Law
Conventions, customary international law, bilateral treaties, and domestic legislation offer some protection and enforcement capacity for sunken warships, particularly those having human remains. The Geneva Convention on the High Seas established that under international law, “warships on the high seas have complete immunity from the jurisdiction of any State other than the flag State.”[9] Yet, preservation and protection of World War II shipwrecks pose challenging legal and practical issues for the nations affected. While some ships containing human remains are considered war graves and protected under domestic legislation, others containing human remains may not be so protected, and sunken warships not considered war graves may fall outside controlled protection, although they remain possessions of the nation under which the ships were flagged.
Under customary international law, sunken warships remain the possession of the flag nation until a formal abandonment of title occurs. For instance, in asserting possession over the wreck of the CSS Alabama, a Confederate States warship located in non-territorial waters, a federal court in the United States recognized that consistent with international law warships sunk during armed conflict and whose remains “are clearly identifiable as to the flag state of origin are clothed with sovereign immunity and therefore entitled to a presumption against an abandonment of title.”[10] Moreover, the court noted, under international law, warships “sunk during military hostilities are presumed not to be abandoned and are considered not subject to salvage in the absence of express consent,”[11] and legal title is not lost through the “mere passage of time in the absence of abandonment. They do not lose title during combat in the absence of an actual capture of the warships.”[12]
All nations are stakeholders in the enterprise of protecting sunken warships. It is hard to imagine a more noble obligation of nations to honor a shared historical legacy and the souls of service members who rest forever in the depths of the sea. Such a shared interest was articulated in the Sea Hunt case in which a United States court found that “protection of the sacred sites of other nations thus assists in preventing the disturbance and exploitation of our own.”[13] This solemn obligation among nations is based on the principle of comity. Comity in international law relies on the recognition and exercise of discretion and courtesy among and between states parties.[14] This aspiration toward mutual cooperation was conveyed in the Buenos Aires Draft Convention on the Protection of the Underwater Cultural Heritage of 1994 (later adopted by UNESCO in 2001), which acknowledged “the importance of the underwater cultural heritage as an integral part of the cultural heritage of humanity and a particularly important element in the history of peoples, nations, and their relations with each other concerning their shared heritage.”[15] The UNESCO Convention on the Protection of the Underwater Cultural Heritage, among other things, obliges States Parties to protect “all underwater traces of human existence” including sites and wrecks “such as a vessel, aircraft, other vehicles or any part thereof, its cargo or other contents, together with its archaeological and natural context.”[16] The Convention imposes on State Parties to take “appropriate measures in conformity with this Convention and with international law that are necessary to protect underwater cultural heritage, using for this purpose the best practical means at their disposal and in accordance with their capabilities.”[17] The Convention also states that underwater cultural heritage shall not be commercially exploited,[18] and that States Parties “shall ensure that proper respect is given to all human remains located in maritime waters.”[19]
This should protect warships from being torn apart by scrappers. But how can such protections be enforced? In addition to preserving underwater wrecks, the UNESCO Convention imposes on States Parties the duty to prevent their flagged vessels from engaging in illegal salvaging, seize illegal recovered underwater heritage, inform the States affected, secure the heritage recovered, participate in mutual assistance and information sharing, and impose sanctions on parties involved in illegal salvaging (articles 16-19). Unfortunately, nations involved in the illegal scrapping of World War II warships are conspicuously absent from the list of States Parties, specifically China, Malaysia, and Indonesia. Moreover, the United States, Great Britain and Australia are also non-parties to the Convention.
Domestic Legislation
The United States, Great Britain, and Australia have crafted domestic legislation to protect their sunken warships from disturbance and plunder. While all carry civil penalties in the form of fines, and in the case of the United States impoundment of the salvage vessel and equipment, none have criminal penalties that would involve imprisonment.
British Protection of Military Remains Act 1986
In 1986 Great Britain enacted the Protection of Military Remains Act[20] intended to protect warships and human remains from unlawful pillaging and disturbance. The Act makes no distinction between warships lost during conflict or peacetime. The primary intention is to treat sunken warships containing human remains as war graves. While all military aircraft are designated as protected under the act, warships, on the other hand, are designated as being under a protected status or a controlled status. Protected status is a less stringent oversight of sunken warships. Recreational diving and scientific study are generally permitted as long as no acts are taken to penetrate the wreck, disturb it in any way, or remove any objects.[21] Controlled status prohibits all activities involving warships that have been deemed war graves without express authority license or permission from the Secretary of State. In addition, an area around the site, the debris field, may also be designated as controlled. Controlled sites are designated as such on admiralty charts and a C buoy is placed at the side of the wreck. While one would assume that British warships sunk with the loss of life would be designated as controlled, such is not the case. In the case of British warships lost in the South China Sea and in the Java sea during World War II, the HMS Prince of Wales and the HMS Repulse have been designated as controlled sites, while other British warship wrecks containing human remains have yet to be designated as controlled. The British Act sets forth enforcement provisions that include penalties that seem hardly punitive: Conviction for violating the Act entails merely a fine and no imprisonment. Given that jail time is not a possibility for desecrating a war grave, the incentive to continue scrapping sunken warships in violation of British law far outweighs the penalty for being caught.
Australia Historic Shipwrecks Act of 1976
In 1976, Australia passed the Historic Shipwrecks Act. The Act seeks to protect the sovereignty of, among other vessels, Australian warships sunk in combat more than 75 years ago within Australian territorial waters and above the Australian continental shelf. Australian naval ships that were sunk in World War II include the light cruiser HMAS Sydney, sunk by a German raider on November 19, 1941. The Sydney is protected under the Historic Shipwrecks Act because it went down in territorial waters more than 75 years ago. But other storied Australian warships that went down in combat in the Java Sea are not protected under the Act. Though shipwrecks, like the HMAS Perth, which because it lies in international waters is dependent upon the cooperation of nations to protect it under customary international law.[22] Protection, however, is only as good as the ability of nations to monitor the sites in a vast sea. Monitoring is expensive, and it is difficult logistically to maintain patrol vessels on site for extended periods, or to respond to reports that illegal scrapping is occurring.
United States Sunken Military Craft Act of 2004 (SMCA)
The United States government enacted the Sunken Military Craft Act in 2004.[23] This Act is intended to protect and preserve warships in both international waters and in the maritime zones of foreign nations, and enforces the absolute sovereignty of the United States over its lost military vessels.[24] According to one legal scholar, the Act “protects ‘the remains and personal effects of the crew and passengers of a sunken military craft that are within its debris field.’ Thus, the SMCA offers protection to human remains, not on the basis of whether the remains are civilian or military, but by designation of the shipwreck as military or non-military, in a fashion consistent with the above discussed common law precedent.”[25]
While criminal penalties are not provided under the Act (only a civil fine), it does appear to have more teeth than the British Act. Section 1404 sets forth that in addition to a fine of up to $100,000 for each violation of the Act, any vessel engaged in violating the act can be held in rem, and in cases where there is eminent evidence or threat of disturbance of a protected shipwreck, any steps necessary to interdict or abate the disturbance or desecration may be taken. This could infer the use of force to protect the sovereignty of a warship and the remains of sailors within the wreckage or in the debris field.
Bilateral Treaties to Protect Sunken Warships and Mutual Cooperation
The protection of sunken warships is also covered under bilateral agreements between nations. For example, the 1902 Treaty of Friendship and General Relations between the United States and Spain provides that “[i]n cases of shipwreck . . . each party shall afford to the vessels of the other, whether belonging to the State or to individuals, the same assistance and protection and the same immunities which would have been granted to its own vessels in similar cases.”[26]
Impacted nations work continually outside the constraints of international conventions to take proactive and collaborative measures to protect sunken World War II warship. In October 2015, for instance, government, military and law enforcement officials from Australia, the UK, the United States, and Indonesia gathered to review current protections of sunken warships in the Java Sea and to seek ways to strengthen cooperation in preserving them. In addition to reviewing ways to protect the warships, the nations agreed to expand public relations efforts to create and sustain awareness about preserving the wreck sites as historical legacies. “The parties agreed to open a museum exhibit in Indonesia highlighting the history of the wrecks, which will help educate residents and foster a sense of joint responsibility for respecting the sanctity of those men lost in service.”[27] In addition to meetings, the participant navies conducted several dives to the HMAS Perth and the USS Houston to assess what damages had been done to the ships by illegal salvaging. Actions taken included placing buoys around the wreck sites and videotaping the conditions of the vessels for further monitoring and study.
Conclusions
The challenge facing nations trying to protect their sunken warships and the souls that rest in them is several-fold: (1) there is greater urgency than ever before to protect the warships from destruction by scrappers who want the valuable “pre-atomic” steel and other metals for high-tech uses; (2) there are no criminal penalties involving jail time for those who desecrate the sites, that would discourage some illegal plundering, (3) the option of use of force to protect the sites remains vague and ambiguous and should become part of the conversation about enforcement of foreign shipwrecks, and (4) more clear guidelines need to be articulated in how to respond and deal with scrappers when they are caught in flagrante at wreck sites. In addition, marking wreck sites on admiralty charts and placing buoys at sites do not protect the ships, but rather act as homing beacons for pirates to plunder. Just as the demand for the steel of their superstructures is driven by the needs of high tech industry for specific kinds of metals, high tech solutions to protect the warships from further desecration should be applied, such as the placement of sophisticated seismic and other monitoring technology around the wreckage sites that would alert authorities of disturbance by illegal scrappers, and where possible, deploying regular aerial surveillance over warship sites by unmanned aircraft. In the words of federal district court judge Steven Merryday writing about the desecration of the 19th century Spanish warship Nuestra Señora de las Mercedes, “the ineffable truth” about the remains of the sunken warships, their contents and crews who remain with them, “are entitled in good conscience and in law to remain undisturbed in perpetuity . . . and despite any man’s aspiration to the contrary.”[28]
Luz E. Nagle is a Professor of Law at Stetson University College of Law where she teaches international law, international criminal law, international business transactions, and seminars on terrorism, human trafficking, and transborder crime. She is a former Colombian judge and worked in Microsoft Corporation’s Latin America Anti-Piracy Enforcement group. She holds an LL.D. from the Universidad Pontificia Bolivariana, a J.D. from the College of William & Mary, an LL.M. in international law from UCLA School of Law, an M.A. in Latin American Studies from the University of California Los Angeles, and two certifications in national security law from the University of Virginia Center for National Security Law.
[1] Oliver Holmes et al., The World’s Biggest Grave Robbery: Asia’s Disappearing WWII Shipwrecks, The Guardian, Nov. 2, 2017, https://www.theguardian.com/world/ng-interactive/2017/nov/03/worlds-biggest-grave-robbery-asias-disappearing-ww2-shipwrecks.
[2] Id.
[3] Abul Taher and Nick Craven, Desecration of British War Graves: Chinese PIRATES Plunder 10 Shipwrecks Carrying Remains of UK’s Second World War Heroes, Daily Mail.com, Aug. 18, 2018, http://www.dailymail.co.uk/news/article-6074441/British-war-graves-desecrated-Chinese-pirates-plundering-Second-World-War-shipwrecks.html.
[4] Linton Besser et al., HMAS Perth: WWII Warship Grave Stripped by Salvagers, ABC News Australia, Dec. 13, 2013, http://www.abc.net.au/news/2013-12-13/outrage-as-warship-grave-stripped-by-salvagers/5156320.
[5] Five WW2 Warships and A Submarine Have Vanished from the Seafloor, IFL Science, Nov. 17, 2106, https://www.iflscience.com/editors-blog/five-ww2-warships-submarine-vanished-seafloor/.
[6] Id., and Partner Nations Preserve, Protect Sunken WWII Wrecks, US Navy Public Affairs new release, Oct. 29, 2015, https://www.navy.mil/submit/display.asp?story_id=91776.
[7] Oliver Holmes et al., The World’s Biggest Grave Robbery: Asia’s Disappearing WWII Shipwrecks, The Guardian, Nov. 2, 2017, https://www.theguardian.com/world/ng-interactive/2017/nov/03/worlds-biggest-grave-robbery-asias-disappearing-ww2-shipwrecks.
[8] Id.
[9] Geneva Convention on the High Seas, Art. 8, April 29, 1958, 13 U.S.T. 2312, T.I.A. S. No. 5200. For an in-depth discussion of sovereign immunity of sunken warships, see Odyssey Marine Exploration, Inc. v. Unidentified Shipwrecked Vessel, 675 F.Supp.2d 1126, 1143 (M.D. Fl. 2009).
[10] U.S. v. Steinmetz, 763 F.Supp. 1293, 1299 (D.N.J. 1991).
[11] Id.
[12] Id.
[13] Sea Hunt, Inc. v. Unidentified Shipwrecked Vessel or Vessels, 221 F.3d 634, 647 (4th Cir.2000).
[14] Restatement (Third) of Foreign Relations Law § 403 cmt. a (1987), see also 2 Thomas J. Shoenbaum, Admiralty and Maritime Law, § 16-7 at n. 27 (5th ed. 2011).
[15] Buenos Aires Draft Convention on the Protection of the Underwater Cultural Heritage, International Law Association, August 1994, pmbl, 6 Benedict on Admiralty, Doc. 4-17.
[16] Convention on the Protection of the Underwater Cultural Heritage art. 1(1)(a), Nov. 2, 2001, 2562 U.N.T.S. 3 (entered into force Jan. 2, 2009).
[17] Id. art. 2(4).
[18] Id. art. 2(47).
[19] Id. art. 2(9).
[20] Protection of Military Remains Act, 1986, c. 35 (Eng.).
[21] Protection of Military Remains Act, 1986, c. 35 (Eng.) sec. 1(2)(b).
[22] Commemorating and Protecting HMAS Perth, Semaphore Issue 2, 2017, http://www.navy.gov.au/media-room/publications/semaphore-commemorating-and-protecting-hmas-perth-i.
[23] Sunken Military Craft Act, Pub. L. No. 108-375, 118 Stat. 181 (codified at 10 U.S.C. § 113 Note (2004)).
[24] The Act also “provides authority for the protection of foreign sunken military craft located in U.S. internal waters, territorial sea, and the contiguous zone” (quoting Ole Varmer, Closing the Gaps in the Law Protecting Underwater Cultural Heritage on the Outer Continental Shelf, 33 Stan. Envtl. L.J. 251, 277 (2014)).
[25] Ole Varmer, Closing the Gaps in the Law Protecting Underwater Cultural Heritage on the Outer Continental Shelf, 33 Stan. Envtl. L.J. 251, 277 (2014).
[26] Treaty of Friendship and General Relations, U.S.-Spain, Art. X, July 3, 1902, 33 Stat. 2105.
[27] Partner Nations Preserve, Protect Sunken WWII Wrecks, Navy.mil, story number : NNS151029-17, Oct. 289, 2015, https://www.navy.mil/submit/display.asp?story_id=91776.
[28] Odyssey Marine at 1129.