Prof Pete Pedrozo on “Desecration of War Graves: the Importance of Protecting Sunken Warships”

Today’s post by popular contributor Prof Raul (Pete) Pedroso is one of increasing importance as apparently there are those who are seeking to exploit sunken warship sites for commercial purposes, irrespective of the environmental and other harms that could arise.  Moreover,  they heartlessly disturb war graves.  As Pete puts it:

These sunken ships and terrestrial aircraft exemplify key events in American history dating back to the Revolutionary War. They also may contain state secrets, could cause environmental damage (e.g., oil) or public safety (e.g., unexploded ordinance) hazards, and (most importantly) are the final resting place of sailors and Marines who “paid the ultimate sacrifice in service of the nation.”

In general, I find the topic of shipwrecks fascinating.  I’m currently reading David Gibbins’ bestseller, A History of the World in Twelve Shipwrecks. In addition, while cruising the Great Lakes this summer, my wife and I visited the National Oceanic and Atmospheric Administration’s (NOAA) wonderful Great Lakes Maritime Heritage Center and learned a lot about ships lost in the Great Lakes, including how Marine Protected Areas (MPAs) safeguard their graves.

In any event, I’m increasingly convinced that with a growing number of maritime issues not only with China, but also with the Houthis in the Red Sea, learning more about the law of the sea is essential for everyone interested in national security.

Here’s Pete’s expert analysis:

DESECRATION OF WAR GRAVES:

IMPORTANCE OF PROTECTING SUNKEN WARSHIPS 

by

Raul (Pete) Pedrozo

Desecrating War Graves

On July 4, 2024, the Chinese dredger MV Chuan Hong 68 was once again detained by the Malaysian Maritime Enforcement Agency (MMEA), this time for “paperwork violations including port clearances” and having 60 unregistered LPG containers on board.

Previously, in January 2024, unexploded ordinance (two 130mm shells and 55 40mm shells) was found at the Johor scrapyard where Chuan Hong 68 had offloaded its cargo. The unexploded shells are roughly equivalent to the standard size for the 5.25-inch guns and “pom-pom” antiaircraft guns used by the Royal Navy during the Second World War.

 In May 2023, MMEA detained the Chuan Hong for allegedly looting cargo from two British warships—HMS Prince of Wales and HMS Repulse—that were sunk on December 10, 1941 by Japanese naval aircraft off the coasts of present day Malaysia and Singapore. The loss of the two warships and their 842 crew members shortly after Pearl Harbor was “one of the worst disasters in British naval history.”

During the boarding of the Chuan Hong 68 in May 2023, Malaysian officials found unexploded artillery shells and other scrap (e.g., steel, aluminum, and brass fittings) that were likely salvaged from the two sunken warships. The Chinese dredger is also suspected of illegally scavenging Dutch warships that were sunk by the Japanese in the Java Sea during the Second World War.

A Royal Navy spokesperson described the illegal plundering of the two war graves as “disgraceful.” The Director General of the National Museum of the Royal Navy expressed his concern “at the apparent vandalism for personal profit of HMS Prince of Wales and HMS Repulse. They are designated war graves. We are upset at the loss of naval heritage and the impact this has on the understanding of our Royal Navy history.”

Why should we care?

Given the large number of ships and aircraft that have been lost at sea during times of war, primarily in areas beyond national jurisdiction, the illegal pillaging of sunken warships is a common occurrence. Access to these wrecks by salvors and treasure hunters is further facilitated by emergent advances in science and technology.

This issue is of particular concern for the United States as the Naval History and Heritage Command (NHHC) Underwater Archaeology Branch (UAB) is tasked with preserving over 2,500 shipwrecks and 15,000 aircraft wrecks distributed around the globe.

These sunken ships and terrestrial aircraft exemplify key events in American history dating back to the Revolutionary War. They also may contain state secrets, could cause environmental damage (e.g., oil) or public safety (e.g., unexploded ordinance) hazards, and (most importantly) are the final resting place of sailors and Marines who “paid the ultimate sacrifice in service of the nation.”

Generally, U.S. policy is to leave these wreck sites undisturbed, thus encouraging in situ preservation. Nonetheless, there may be situations where disturbance or artifact recovery may be justified or become necessary. NHHC has therefore established a permitting program pursuant to the Sunken Military Craft Act (SMCA) that allows for controlled site disturbance.

Status of sunken warships

Sunken warships (and other sovereign immune craft and objects) retain their sovereign immunity and remain the property of the flag State until title is formally relinquished or abandoned by the flag State. This is true whether the cause of the sinking was through accident or enemy action, unless the warship or aircraft is captured before it sinks (NWP 1-14M §§ 2.1.2, 3.9; Annotated Supplement §§ 2.1.2, 3.9 Commentary).

For the United States, section 1401 of the Sunken Military Craft Act preserves the sovereign immune status of sunken U.S. military vessels and aircraft by codifying their protected sovereign status and permanent U.S. ownership (except by an express divestiture of title by the United States), regardless of the passage of time.

Applicable Maritime Law

Under the United Nations Convention on the Law of the Sea (UNCLOS), all objects of an archaeological and historical nature found in the high seas and deep seabed (the Area) shall be preserved or disposed of for the benefit of mankind as a whole, particular regard being paid to the preferential rights of the State or country of origin, or the State of cultural origin, or the State of historical and archaeological origin (UNCLOS, art. 149).

States have a duty to cooperate and protect archaeological and historical objects found at sea (UNCLOS, art. 303). Nothing in article 303, however, affects the rights of identifiable owners, the law of salvage, or other rules of admiralty, or laws and practices with respect to cultural exchanges (UNCLOS, art. 303). Additionally, article 303 is without prejudice to other international agreements and rules of international law regarding the protection of objects of an archaeological and historical nature (UNCLOS, art. 303).

States exercise sovereignty over their internal waters and territorial sea (UNCLOS, art. 2) and therefore have exclusive jurisdiction over objects of an archaeological and historical nature found within these waters.

Additionally, to control the traffic in such objects, a coastal State may, in applying article 33, presume that the removal of such objects from the seabed in the contiguous zone without its approval would result in an infringement of its customs, fiscal, or sanitary laws within its territory or territorial sea (UNCLOS, art. 303).

Sunken warships and other sovereign immune craft may also be protected by the Underwater Cultural Heritage Convention (UCHC).

“Underwater cultural heritage” is defined in the convention 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 such as . . . vessels, aircraft, other vehicles or any part thereof, their cargo or other contents, together with their archaeological and natural context.” (UCHC, art. 1(1)(a)(ii)). Sunken warships from the First World War (and prior) may therefore be protected by the UCHC.

States Parties have a duty to take all appropriate measures to protect underwater cultural heritage (UCHC, art. 2(4)). Additionally, States are encouraged to enter into bilateral or multilateral agreements and arrangements to preserve underwater cultural heritage (UCHC, art. 6). Nonetheless, nothing in the UCHC shall be interpreted as modifying the rules of international law and State practice pertaining to sovereign immunities, nor any State’s rights with respect to its State vessels and aircraft (UCHC, art. 2(8)).

An example of a bilateral agreement that pre-dates the UCHC is the U.S.-French agreement regarding the CSS Alabama. In 1984, a French Navy Circé class mine hunter discovered the remains of the Alabama in the French territorial sea in about 200 feet of water. The Alabama sank off the coast of Cherbourg, France, on June 11, 1864, after a brief naval skirmish with the USS Kearsarge.

The United States claimed ownership of the wreck as the successor State and subsequently entered into an agreement with France on October 3, 1989, that recognized the Alabama as an important heritage resource of both States and established a joint French American Scientific Committee to oversee archaeological investigation of the wreck. France officially recognized U.S. ownership of the Alabama on October 18, 1991 (Note Verbale No. 2826).

Consistent with UNCLOS, States have the exclusive right to regulate and authorize activities directed at underwater cultural heritage in their internal waters, archipelagic waters, and territorial sea, but should inform the flag State of the discovery of an identifiable State vessel or aircraft (UCHC, art. 7). Additionally, States may regulate and authorize activities directed at underwater cultural heritage within their contiguous zone (UCHC, art. 8).

Because cultural heritage is considered a resource, coastal States may also regulate activities directed at such heritage to prevent interference with its sovereign rights and jurisdiction in the exclusive economic zone (EEZ) and continental shelf (UCHC, art. 10(2); UNCLOS, arts. 56, 77).

Nevertheless, a coastal State that discovers or intends to regulate activities directed at underwater cultural heritage in its EEZ or on its continental shelf has an obligation to consult all other States that have declared an interest on how best to protect the underwater cultural heritage (UCHC, art. 10(3)). No activity, however, should be directed at a State vessel or aircraft without the agreement of the flag State (UCHC, art. 10(7)). Similarly, no activity should be directed at a State vessel or aircraft located in the Area without the consent of the flag State (UCHC, art. 12(7)).

National Sunken Warship Policy

In 2001, President Bill Clinton issued a U.S. policy for the protection of sunken statecraft. The policy statement reaffirms that, pursuant to the property clause of the Article IV (section 3) of the U.S. Constitution, “the United States retains title indefinitely to its sunken State craft unless title has been abandoned or transferred” in a manner authorized or directed by Congress.

Moreover, “title to U.S. or foreign sunken State craft, wherever located, is not extinguished by passage of time, regardless of when such sunken State craft was lost at sea.” The United States also recognizes the “rule of international law that title to foreign sunken State craft may be transferred or abandoned only in accordance with the law of the foreign flag State.”

Accordingly, disturbance or recovery of a sunken State craft should only occur with the express permission of the sovereign and must “be conducted in accordance with professional scientific standards and with the utmost respect for any human remains.” “The United States will use its authority to protect and preserve sunken State craft of the United States and other nations,” whether located in U.S. waters, a foreign nation’s waters, or in international waters.

Generally, the United States does not grant permission to salvage sunken U.S. warships or military aircraft that contain the remains of deceased service personnel or explosive material. Additionally, requests from other States to have their sunken warships or military aircraft, located in U.S. national waters, similarly respected by salvors, are honored. (NWP 1-14M § 2.1.2; Annotated Supplement § 2.1.2 Commentary).

 France, Germany, Japan, Russian Federation, Spain, and the United Kingdom have similar policies. The French policy acknowledges that all sunken State craft enjoy sovereign immunity regardless of location and period of elapsed time. France may, however, formally renounce its rights to its sunken warships at any time. Thus, a French sunken State craft may not be disturbed or recovered “without the express consent of the French Republic” unless the vessel was captured prior to sinking.

Similarly, Germany’s policy states the sunken State vessels and aircraft continue to enjoy sovereign immunity after sinking wherever they are located. Additionally, Germany retains ownership of any German State vessel or aircraft at the time of its sinking. Moreover, because sunken warships and aircraft are considered maritime graves, they must be respected and “no intrusive action may be taken…without the express consent of the German Government.”

Japan also takes the position that sunken Japanese State vessels remain the property of Japan, regardless of location or time elapsed, unless the Japanese government “explicitly and formally relinquishes its ownership.” Sunken State vessels are considered war graves and may not be “salvaged without the express consent of the Japanese Government.”

Likewise, the Russian Federation policy reflects that Russia retains ownership over sunken State vessels and government aircraft regardless of when they sank. These craft are given special protection by the government and cannot be salvaged without the permission of the Russian government.

Spain’s policy reflects that it has not abandoned or otherwise relinquished ownership or other interests over sunken government vessels or vessels transporting property of the Kingdom of Spain or their content, unless otherwise provided by a Royal Decree or Act of Parliament in accordance with Spanish law. These vessels are considered the final resting place of military and/or civilian casualties and may not be salvaged or disturbed without the express consent of the Kingdom of Spain.

The United Kingdom maintains that, under international law, State vessels and aircraft continue to enjoy sovereign immunity after sinking (regardless of when they sank), “unless they were captured by another State prior to sinking or the flag State has expressly relinquished its rights.” These vessels and aircraft are considered maritime graves and must be respected. Therefore, no intrusive action may be taken in relation to UK sovereign immune State vessels or aircraft without the express consent of the United Kingdom.

Sunken Military Craft Act

Congress enacted the Sunken Military Craft Act (SMCA) on October 28, 2004, to preserve and protect all U.S. government-owned sunken military craft and foreign sunken military craft that lie within U.S. waters from unauthorized disturbance. The Act prohibits persons from engaging in or attempting to engage in any activity directed at a sunken military craft that disturbs, removes, or injures any sunken military craft (SMCA, § 1402(a)). The Act also prohibits persons from possessing, disturbing, removing, or injuring any sunken military craft (SMCA, § 1402(b)).

Exceptions apply if authorized by a permit or regulations issued pursuant to the Act, or as otherwise authorized by law (SMCA, § 1402(a)(1)-(3)). The Act also does not apply to actions taken by, or at the direction of, the United States (SMCA, § 1402(c)).

Actions by a person who is not a U.S. citizen, national, or resident alien are similarly excluded from the Act except in accordance with (a) generally recognized principles of international law; (b) an agreement between the United States and the foreign country of which the person is a citizen; or (c) in the case of an individual who is a crew member or other individual on a foreign vessel or foreign aircraft, an agreement between the United States and the flag State of the foreign vessel or aircraft that applies to the individual.

The Department of the Navy has established a permitting program pursuant to the Act to allow for controlled site disturbance of sunken and terrestrial military craft that would otherwise be prohibited for archaeological, historical, or educational purposes (SMCA, § 1403(a)).

Permits may also be issued at the request of a foreign State with respect to any foreign sunken military craft of that State located in U.S. waters (SMCA, § 1403(d)). In this regard, the “Secretary of State, in consultation with the Secretary of Defense, is encouraged to negotiate and conclude bilateral and multilateral agreements with foreign countries with regard to sunken military craft…” consistent with the Act (SMCA, § 1407).

Any person violating the Act, or any regulation or permit issued pursuant to the Act may be fined up to $100,000 for each violation (SMCA, § 1404(a)-(b)). Each day of a continued violation constitutes a separate offense for purposes of liability (SMCA, § 1404(c)). Additionally, if a vessel is used to violate the Act, it shall be liable in rem for a penalty under section 1404 (SMCA, § 1404(d)).

Moreover, if the Secretary of the Navy or Secretary of Homeland Defense “determines that there is an imminent risk of disturbance of, removal of, or injury to any sunken military craft, or that there has been actual disturbance of, removal of, or injury to a sunken military craft, the Attorney General, upon request of the Secretary concerned,” may seek such relief in an appropriate U.S. district court as may be necessary to abate such risk or actual disturbance, removal, or injury and to return or restore the sunken military craft (SMCA, § 1404(e)).

Persons who violate the Act or any regulation or permit issued pursuant to the Act that disturbs, removes, or injures any U.S. sunken military craft shall pay the U.S. enforcement costs and damages resulting from such disturbance, removal, or injury. (SMCA, § 1405(a)).

Damages may include “(1) the reasonable costs incurred in storage, restoration, care, maintenance, conservation, and curation of any sunken military craft that is disturbed, removed, or injured in violation of section 1402 or any regulation or permit issued under this title; and (2) the cost of retrieving, from the site where the sunken military craft was disturbed, removed, or injured, any information of an archaeological, historical, or cultural nature” (SMCA, § 1405(b)).

Nothing in the Act is intended to affect (1) any activity that is not directed at a sunken military craft; or (2) traditional high seas freedoms of navigation (e.g., the laying of submarine cables and pipelines; the operation of vessels; commercial fishing; or other internationally lawful uses of the sea related to such freedoms (SMCA, § 1406(a)).

The Act and its implementing regulations “shall be applied in accordance with generally recognized principles of international law and in accordance with the treaties, conventions, and other agreements to which the United States is a party” (SMCA, § 1406(b)). Similarly, nothing in the Act is intended to alter the international law of capture or prize with respect to sunken military craft (SMCA, § 1406(e)).

The law of finds shall not apply to (1) any U.S. sunken military craft, wherever located; or (2) any foreign sunken military craft located in U.S. waters (SMCA, § 1406(c)). Additionally, no salvage rights or awards shall be granted with respect to (1) any U.S. sunken military craft without the express permission of the United States; or (2) any foreign sunken military craft located in U.S. waters without the express permission of the relevant foreign state (SMCA, § 1406(d)). 

Permitting Program

While in situ preservation of sunken military craft is preferred, NHHC recognizes that artifact removal or site disturbance may be necessary to protect a cultural resource, conduct scientific research, or provide for public education. In these instances, NHHC may “issue a research permit authorizing activities aimed at disturbing, removing, or injuring a sunken military craft…” under Navy management.

Permits are not required for diving on, photographing, or conducting remote sensing operations over sunken military craft provided the wreck site and associated artifacts are not disturbed. Similarly, inadvertently disturbing a wreck site while engaged in fishing or other maritime activities, such as the laying of submarine cables and pipelines, or the operation of vessels does not require a permit. The permitting rules are found at 32 CFR 767.

Conclusion

Sunken military craft are of historical importance to States and in many cases are war graves and memorials to the men and women who served on them.

Many can also pose a public safety hazard because they contain unexploded ordnance, oil, and other toxic materials that, if not properly handled, could cause substantial harm to the marine environment. Some may also hold state secrets and classified technologies that are of significance to our national security.

It is therefore important that these wrecks be properly respected and protected from States like China that allow their would-be treasure hunters and salvors to pillage wreck sites.           

More than half of the Navy’s sunken military craft rest beyond U.S. waters. By preserving these wrecks, the United States promotes the rule of law pertaining to sovereign immune sunken military craft and preserves U.S. title to these wrecks. The United States also has an interest in entering into agreements or other arrangements with foreign nations (like the agreement regarding the CSS Alabama) to ensure U.S. sunken military craft are respected and protected in foreign waters. To encourage universal respect and protection, these agreements can offer reciprocal treatment for foreign sunken military craft in U.S. waters.

About the author:

Captain Raul (Pete) Pedrozo, U.S. Navy (Retired), is the Howard S. Levie Chair on the Law of Armed Conflict and professor of international law at the Stockton Center for International Law, U.S. Naval War College. Prof. Pedrozo was the former senior legal adviser at U.S. Pacific Command and served as special assistant to the Under Secretary of Defense for Policy.

Disclaimers:

The views and opinions expressed in this article are those of the author and do not necessarily reflect those of the U.S. Naval War College, the U.S. Department of Defense, or the U.S. Government.

The views expressed by guest authors do not necessarily reflect my views or those of the Center on Law, Ethics and National Security, or Duke University. (See also here).

Remember what we like to say on Lawfire^®: gather the facts, examine the law, evaluate the arguments – and then decide for yourself!