Maritime Salvage and the Battle off Malaya

It took just two hours for the Japanese air attack to sink HMS Prince of Wales and Repulse in December 1941. For the sailors this should have been their last resting place, in a remote spot some 100 nautical miles east of Malaysia in 50 to 70 metres of water. But a combination of toothless legislation, marauding divers and wholesale looting means that today little remains of this historic naval battle.

Early discovery

Whilst the British Royal Navy fixed the ships’ locations in the early 1950s and RN clearance divers noted their condition in the 1960s as inverted but intact, it took until about 2014 before opportunistic divers armed with explosives located these and other Java Sea sites and began a successful campaign of looting. The wrecks suffered major structural damage. A survey by the UK’s MoD Salvage and Marine in March 2019 revealed gaping holes where the midships engineering spaces should have been in both ships, indicating that salvors had targeted the most lucrative components made of copper and brass. At the time Repulse was more heavily damaged, with much of the forward magazines and stern also gone. By now the smaller diver boats and salvage barges responsible for the looting had either been detained or left the region and the situation appeared to have settled. The British and Malaysian government pledged to increase surveillance of the wrecks but little else could be done.

Japanese air attack on Force Z, Prince of Wales (top) and Repulse (bottom) being bombed 10 December 1941

Fresh assault 

But in April 2023 the Maritime Archaeology Sea Trust (MAST) was alerted by social media of the presence of a Chinese flagged salvage vessel operating over the HMS Prince of Wales site. A Malaysian scrapyard worker was excited to share a video, set to music, on TikTok of the unloading of a 5 1/4 inch gun at a scrapyard in Kampung Belungkor in southern Malaysia.

Using their Maritime Observatory, MAST picked up the information to trace the vessel and its movements over the last six months. The Chuan Hong 68, a purpose-built Chinese barge, had been operating over the site since December 2022 and had recently sailed to a scrapyard near the Johor Straits north of Singapore with her illegal cargo, estimated worth $4m.

Simultaneously an X/Twitter post shared an image taken by a fisherman of what appeared to be the same crane barge over the Force Z wrecks. The Maritime Observatory team identified the same crane barge that had previously been arrested in Indonesia for targeting Japanese WWII wrecks. The Royal Malaysian police acted quickly, raiding the scrapyard on the Johor riverside overlooking where Force Z had departed 83 years earlier. Finding piles of wreckage including British made naval shells and ammunition, that suggested a Royal Navy wreck had been the target. However, the Chuan Hong 68 was nowhere to be found and hard evidence of wrongdoing would be needed to prosecute the scrapyard owner.

Maritime Observatory tracking

Using the Maritime Observatory’s technology, MAST built a digital forensic case, firstly reconstructing the Chuan Hong 68’s movements by tracking the crane barge’s Automatic Identification System (AIS) transmissions, a GPS signal that ships use to provide situational awareness to vessels and shore stations to help avoid collisions. The trail revealed that the barge had been active in the area around the wrecks since December 2022, far longer than expected. It had docked five times at the scrapyard where the infamous TikTok video was filmed and each time had then sailed on the two-day voyage north towards the Force Z sites. Aware that they could be seen from space, the crew went dark, turning off their AIS each time the vessel came within 100nm of the wrecks, reappearing about a week later when returning to the scrapyard. There were no AIS transmissions near the wrecks themselves. This explains why no alerts had been triggered in UK or Malaysian Intelligence Centres when the salvage was occurring as they typically use AIS to monitor vessel traffic.

Chuan Hong 68 unloading at Kamung Belungkor on 28th March 2023

Malaysian police raid

The Observatory then used a range of satellite imagery to detect the Chuan Hong 68’s activities during the ‘dark’ times: the ship had been operating over both wrecks and captured high-resolution imagery of it unloading wreckage in the scrapyard, proving the remains were from Force Z. Kampung Belungkor was first raided by Royal Malaysian Police on 21st May 2023. Wreckage was seized including large quantities of British-made ammunition. Most tragically among salvage items were human remains, most likely of those who died in 1941. Also amongst the scrap were HMS Prince of Wales’ two large bower anchors.

With this information the Malaysians were able to arrest the crew on their sixth trip and charge them with unauthorised salvage. The two anchors and other iron scrap were recovered from Kampung Belungkor by the Malaysian Armed Forces during Summer 2023 and were moved to a secure outdoor location. (The human remains are still in limbo. Most of the scrap had already been moved by columns of trucks to an unknown location.) Meanwhile Malaysian fishermen have had to suffer the consequences of a 10 km oil spill created when the salvors punctured one of the ship’s fuel tanks.

Chuan Hong’s voyage of destruction

The ship had to make five or more trips into port through one of the busiest shipping lanes in the world while openly carrying wreckage from the Prince of Wales on deck, so it was a huge missed opportunity that no inspections were made earlier. Using the same techniques the Maritime Observatory reconstructed the crane barge’s movements starting with its arrival in country on New Year’s Day 2022. Investigations revealed a hidden campaign of looting that had successfully targeted other British and Japanese warship wrecks under the cover of legitimate contacts to remove modern cargo shipwrecks from the shipping lanes. The salvage of Prince of Wales and Repulse in 2023 was the climax of an 18 month looting operation.

Wrecks targeted by Chuan Hong 68 2022-2023

The most significant historic wreck targeted in this way was the Japanese heavy cruiser IJN Haguro, sunk by a British taskforce in the Malacca Straits in 1945. The salvors used the wreck of the modern cruise ship Sun Vista as a decoy. Officially Chuan Hong 68 spent 24 days onsite carrying out legitimate salvage. However, on two occasions the AIS transmission cut out, restarting days later at the same location. During these gaps we were able to identify the vessel directly over the Haguro, 32km to the northwest. It appears to have spent eight days over the Japanese wreck in July and August 2022, with the Observatory’s satellite imagery recording an undocumented oil slick from the site that impacted nearby fisheries for weeks afterwards. Blending historic and modern wreckage could well have passed checks by officials when the material was unloaded in four batches at a derelict Yacht Club in the port of Lumut.

Today the Malaysian investigation into Chuan Hong 68 continues. The vessel was released in mid 2024, briefly detained again on further charges, and released again. It continues to operate intermittently in Malaysian waters and further afield – lately off South Africa – although perhaps under greater scrutiny. Many questions remain over the vessel’s ownership and operation in Malaysia, the intended buyer of the looted metal, and for some, the role of the Chinese state in the contested Java Sea waters.

The law

The protection of the site of HMS Prince of Wales has been raised intermittently in Parliament since 1975. In 2018 the then Defence Secretary Gavin Williamson said: “I am very concerned to hear any allegations of incidents of Royal Navy wrecks being plundered in the Far East… We will work closely with the Indonesian and Malaysian governments to investigate these claims.” In May this year Lord West tabled six questions in the House of Lords to the Ministry of Defence querying any Government plans to recover human remains from Malaysia and what steps have been taken to recover the looted metal.

The aftermath of this frenzied looting shows dispiritingly that in UK law there is no such thing as a war grave, or final resting place for military personnel lost at sea. These sites are indeed maritime graves but in name only. The relevant legislation is the Protection of Military Remains Act 1986. Although designed to protect warships and aircraft, it only applies in British waters or internationally to British nationals and British flagged vessels. Thus, a looting British diver or skipper can be prosecuted under the PMRA, however, an 8,000-tonne Chinese crane dredger, lifting hundreds of tonnes of steel, cannot be prosecuted under UK law.

Britain can also assert Sovereign Immunity or ownership, of the wreck. This is an interpretation of international law that argues that state or crown property, such as a warship, remains state/crown property, thus anyone removing all or part of it is stealing from the owner. Of course, the problem is that the perpetrator must be caught, identified and prosecuted – not straightforward in a foreign jurisdiction or international waters. Only some countries recognise the concept and China is not one of them.

Geopolitics

It has been suggested repeatedly that China’s growing assertiveness and influence within the nine dash line is linked to that country’s ambition to raze the seabed of foreign sites. As a consequence, there would be no ability for other countries to assert or claim Sovereign Immunity over the war grave. It also erases any history of overseas activity in the area. The aircraft carrier, HMS Prince of Wales, leading the Operation HIGHMAST Task Group has just arrived in Singapore. This presents yet another challenge to navigate the choppy seas of the region.

Afterword: ‘The Status and Protection of Warship Wrecks in International Law’ by Prof Steven Haines

The publication of the article about damage to the wrecks of HM Ships Prince of Wales and Repulse presents an opportunity to provide comment on the international law that applies in such circumstances. The article is a thorough treatment of the issues raised by the recent increase in unauthorised interference with the wrecks and, in particular, of the desecration of what amounts to the final resting place of those who died and went down with their ships when the vessels were sunk by enemy action in 1941. While naval opinion may understandably regard such wrecks as ‘war graves’ and the naval community may instinctively refer to them in that way, they are not universally recognized as such. The article does include comment about the law but an expanded brief may be a useful addition to that excellent account.

The activities of the Chinese registered vessel referred to in the article – and any others engaged in interfering with the wrecks for material gain – are arguably not ‘salvage’ and, if that is the case, those engaged in that activity cannot be described as ‘salvors’. In one prominent view, ‘salvage’ is to do with saving property in peril. So, for example, a vessel in distress or ‘not under command’ may be subject to salvage. This is dealt with by a form of contract between the vessel’s owners and, typically, a salvage company, tug operator, or simply another vessel in close proximity capable of providing assistance. Readers may be familiar with the Lloyd’s Open Form contract in connection with this. It is our view that a vessel that has sunk cannot be ‘salvaged’ – although some states may use such terminology in their domestic law in relation to the recovery of wrecks within their jurisdiction. If a wreck or a part thereof is removed from the seabed, it is subject to what might usefully be termed ‘wreck removal’, especially if that activity is authorized. A coastal state may authorize the removal of a wreck, for environmental or other legitimate reasons, if it is located within that state’s areas of jurisdiction. When the removal of a wreck or elements of it is unauthorized, one might usefully refer to the process as ‘looting’.

Warships, as defined in both the 1958 High Seas Convention and the 1982 UNCLOS Convention, are under the sovereign jurisdiction of their flag state. The wreck of a warship remains the sovereign property of that state. Not all warships will remain the sovereign property of their flag, however. A warship captured in war, under the terms of the Law of War and Neutrality at Sea, can have its ownership transferred to the opposing belligerent… it becomes what is referred to as legitimate ‘booty’. It may even be re-flagged and then deployed as a warship by the state that has captured it. While this is the case with a warship that is captured and which remains afloat, a warship sunk as a result of enemy action cannot be regarded as booty and then subsequently claimed by the belligerent that sank it. So, therefore, both the Prince of Wales and Repulse retain their UK identity (as indeed, the sunk Japanese warships also referred to remain under Japanese jurisdiction).

There is no international law covering the status or protection of what we might wish to refer to as ‘naval/maritime war graves’. There is, however, UK domestic legislation. The Protection of Military Remains Act 1986 deals with both aircraft and vessels. It provides for two categories of protection: 1) Protected Places; and 2) Controlled Sites, the former intended to protect the graves of those lost through shipwreck/sinking and the latter to cover dangerous areas. These designated sites, despite the presence of human remains, do not fall within the purview of the Commonwealth War Graves Commission and cannot be referred to in law as ‘war graves’. While the 1986 Act covers UK designated Protected Places world-wide, it is only enforceable generally within UK coastal jurisdiction. Beyond that, it is only in practice enforceable against British citizens, British-flagged ships, or vessels of other flags landing in the UK. The activities of the Chinese vessel interfering with the wrecks of the Prince of Wales and Repulse do not, therefore, fall within the jurisdiction of the British courts. This is the reason why the authors of the article above refer in their opening paragraph to “toothless legislation.”

So much for UK legislation. What of international law? Despite my professional and academic focus on public international law, I am the first to admit that it is by no means the basis of a foolproof system for resolving disputes, dealing with breaches of the law and ensuring a sensible solution to challenging problems within the international system. There is no comprehensive rule of law internationally and this is especially the case in relation to matters to do with the seas and oceans. There is no effective process of enforcement, especially on the high seas. Even if there were, there is no sure means of imposing an effective sanction for the breach of any recognised international law relevant to those circumstances.

Having attempted to manage expectations, what does international law actually say about the status and protection of sunken warships? The answer is ‘very little’. While the 1982 UN Law of the Sea Convention usefully provides a definition of ‘warship’ and makes it clear that they, together with certain other State-owned or operated ships, have complete immunity from the jurisdiction of other States when sailing on the High Seas, within the Exclusive Economic Zones (EEZ) and through the territorial seas of other coastal states, there is no rule relating to the status and immunity of State vessels that, for whatever reason, have sunk. This leaves it open for legal debate as to whether or not the principle of sovereign immunity still applies to them. The law is arguably silent about whether sovereign ownership rights over them are retained by the flag State over time.

In relatively recent decades, as access to the sea-bed – and the numerous wrecks lying on it – has improved, there has developed an increasing interest in wrecks, their cultural, historical and environmental significance. In relation to sunken warships, there is the added concern about wrecks that contain the human remains of those who went down with their ships as a result of enemy action in naval war. There have been a number of attempts to cover the issues raised in the absence of rules contained in the 1982 UN Convention. In 2001, UNESCO promulgated its Convention on the Protection of Underwater Cultural Heritage and, in 2007, the International Maritime Organization agreed the Nairobi International Convention on the Removal of Wrecks. Both conventions have had some relevance in relation to sunken warships, although that was not the main focus of either.

While conventional law is important, state practice has also been influential in the development of customary law, with States asserting assumed rights in relation to interference with significant wrecks. There has been growing opinion that interference with State owned wrecks be regarded as unlawful without flag State consent. Overall, however, the law remained disputed and the need for clarification was picked up by the Institut de Droit International in 2007.

In 2015, at its meeting in Tallinn, the Institut passed a Resolution on The Legal Regime of Wrecks of Warships and Other State-Owned Ships in International Waters. It is important to note that this is neither a convention nor a formal codification of customary law. It is perhaps best regarded at the moment as a ‘soft law’ instrument that is an attempt to move the informal rules it contains relating to warship wrecks towards legally binding status; it is arguably influential though not currently binding. It is a good and considered position, however, and the Resolution, and the Report that preceded it, contribute significantly to the clarification of international law on warship wrecks.

The 2015 Resolution

The Resolution consists of 15 substantive articles covering most of the issues raised by the existence of sunken State vessels. It can be summarised as containing the following key points:

• ‘Wreck’ means a sunken State ship which is no longer operational, or any part thereof,
  including any sunken object that is or has been on board such ship;

• ‘A sunken State ship’ means a warship, naval auxiliary or other ship owned by a State
  and used at the time of sinking solely for governmental non-commercial purposes;

• States shall take the measures necessary to prevent or control commercial exploitation or pillage of sunken State ships, which are part of cultural heritage;

• Without prejudice to other provisions of this Resolution, sunken State ships are immune from the jurisdiction of any State other than the flag State;

• Sunken State ships remain the property of the flag State, unless the flag State has clearly stated that it has abandoned the wreck or relinquished or transferred title to it;

• Due respect shall be shown for the remains of any person in a sunken State ship. This
  obligation may be implemented through the establishment of the wreck as a war cemetery or other proper treatment of the remains of deceased persons and their burial when the wreck is recovered. States concerned should provide for the establishment of war cemeteries for wrecks;

• All States should co-operate to protect and preserve wrecks which are part of cultural
  heritage, to remove wrecks which are a hazard to navigation, and to ensure that wrecks do not cause or threaten pollution of the marine environment.

While some consideration was given to the possibility that the Resolution could include a formal call for the negotiation of an international treaty, in the end this was not included.  The Resolution from 2015 is, nevertheless, arguably the best available statement of the international position on warship wrecks.

So much for international law and the ways in which it is developing. How the rules are enforced and by which State in relation to the protection of the wrecks of the Prince of Wales and Repulse, is something to be pondered!