Daiana Seabra Venancio
The recent incident with the KRI Nanggala Indonesian submarine highlighted the dangerous situations that the crews of underwater vehicles may encounter. Moreover, when submarines sink, the limited oxygen supply and rescue conditions are more complicated than in ordinary shipping accidents. For this reason, unmanned vehicles in the deep sea are not only ideal but should become a standard in the future to safeguard human life and allow operations in some of the most inhospitable environments on the planet.
The proliferation of autonomous vehicles brings significant challenges for the States, shipping industry, and stakeholders that fund them. Governmental and non-governmental organizations are currently concerned about the compatibility between autonomous ships and the existing international law framework. It is necessary to create specific standards for vessels on an international law level because they navigate through different coastal state jurisdictions and spaces beyond the limits of national jurisdiction. However, those debates have not generally considered unmanned underwater vehicles, and that brings uncertainty about their legal status under international law. Given the scenario described, this article analyzes the possible legal loopholes regarding autonomous underwater vehicles.
Even though governments are working toward a solution to this legal problem, this effort seems restricted to commercial ships. The International Maritime Organization (IMO) defines Maritime Autonomous Surface Ship (MASS) as ‘a ship which, to a varying degree, can operate independently of human interaction.’ MASS can navigate partially or fully without master and crew on board, controlled either by an automated system or remotely. Although this definition could include any ship or maritime vehicle, the acronym MASS refers only to surface ships, which means that underwater vehicles fall out of the scope of current IMO regulations.
Unmanned Underwater Vehicles (UUVs): ROVs and AUVs
Unmanned underwater vehicles (UUVs), also known as underwater drones, can operate submerged without any crew and can be divided into two categories: (i) remotely operated vehicles (ROVs), which have a remote human operator, and (ii) autonomous underwater vehicles (AUVs), which operate without human input.
Consequently, the nature of UUVs should be questioned. Indeed, they could either be considered as a piece of equipment or as ships. ROVs are typically connected to a service ship from which the personnel operate the vehicle. In this context, ROVs are more like a piece of equipment attached to a vessel. A recent example of an incident related to a ROV was the detachment of a 5-kilometer cable connecting the 25-ton mining robot prototype Patania II, an ROV owned by Global Sea Mineral Resources. Although the company rescued the Patania II after a few days, this occurrence shows the importance of alternative ways to remotely control the vehicle rather than just cables. Thus, vehicles with hybrid systems — remotely controlled and autonomous — are ideal for preserving the equipment in case of temporary interruption or disconnection with the remote operator.
On the other hand, AUVs can operate completely autonomously during most of their mission at sea. AUVs are often used for marine scientific research (MSR), but they can have other functions, such as cargo vehicles for submarine cables and offshore installation surveillance.
It is unclear whether AUVs should be considered as ships or as ‘scientific research installations or equipment in the marine environment,’ as described in the United Nations Convention in the Law of the Sea (UNCLOS), Part XIII, Section 4. On the one hand, there has already been some debate as to whether unmanned vessels can constitute ‘ships’ or ‘vessels’ under UNCLOS, given the crewing requirements of Article 94 (see for example McKenzie 2020). On the other hand, debates about whether UUVs could constitute scientific equipment or vessels under UNCLOS have received little consideration. In this regard, UNCLOS does not define ‘scientific research installations or equipment in the marine environment’, thus leaving room for interpretation.
E. D. Brown (2003, p. 303) mentions the draft Convention on the Legal Status of Ocean Data Acquisition Systems (ODAS) of 1972 to understand what could be considered ‘scientific research installations or equipment in the marine environment’ in the MSR context. This draft was prepared by the Intergovernmental Oceanographic Commission (IOC) of the United Nations Educational, Scientific and Cultural Organization (UNESCO). In Article 1 paragraph 1 of the draft convention, ODAS are described as ‘a structure, platform, installation, buoy, or other device, together with its appurtenant equipment, deployed at sea for the purpose of detecting, sensing or sampling the characteristics of the environment of the ocean, the superjacent atmosphere, or the subjacent seabed or the subsoil thereof, and, in appropriate cases, storing or transmitting such data’. Article 6 states that ‘an ODAS shall have the nationality of the State in which it is registered. Such State shall have the same rights, and obligations as have States in matters concerning ships sailing under their respective flags.’ Article 5 establishes the registry.
The registration requirement for ODAS relates to the general UNCLOS rules regarding jurisdiction and diplomatic protection to vessels. Considering the draft 1972 Convention, an ODAS fits the UNCLOS concept of ‘scientific research installations or equipment in the marine environment.’ The draft ODAS Convention provides more details about registration, illegal acts, and other essential aspects that UNCLOS remains uncertain about. Even if the ODAS Convention is not in force, it remains a complementary source for interpreting what a scientific research installation or equipment in the marine environment is and verifying if an AUV can be an ODAS in the MSR context.
The possible legal status that AUVs might have on the international law level
Considering this brief analysis of the draft Convention on ODAS, it is possible to conceive at least three different scenarios according to E. D. Brown (2003, p. 305-306):
(i) the AUV is deployed from a mother ship and supervised by it. In this case, the AUV seems to fit under the description of ‘scientific research installations or equipment in the marine environment’, even if it is not attached to the mother ship as an ROV commonly is. Therefore, it is relevant to evaluate if all AUVs could be considered mother ship’s equipment, even if the ‘scientific research installations or equipment in the marine environment’ described in the UNCLOS can only be applied in the MSR context.
(ii) AUVs are considered ships, and they need to navigate a flag state. Adopting this perspective would give rise to the regime described in the UNCLOS Part VII, and AUVs would be subject to the jurisdiction of their home State. This second scenario is relevant to identify which international organization could create standards to regulate AUV navigation. As previously mentioned, the IMO rules are related to autonomous surface ships, not including AUVs. Also, AUVs can perform different functions such as MSR, mining, and offshore repair—activities that fall out of the IMO scope: shipping. In the Area (which comprehends seabed and ocean floor and subsoil thereof, beyond the limits of national jurisdiction, according to UNCLOS, Article 1), it is possible to claim that the International Seabed Authority (ISA) can regulate the AUVs engaged in mining activities. However, the ISA scope is still insufficient to handle all functions that AUVs may have.
(iii) the AUV is not closely attended to nor supervised by a mother vessel, it is operated autonomously and is not considered a ship under international law. This is the most complex scenario because it is hard to identify which status AUVs assume at the international law level. As mentioned, it is possible to interpret an AUV as ‘scientific research installations or equipment in the marine environment’ in the UNCLOS or ODAS only in the MRS context. Any other activities conducted by a non-supervised AUV falls out of UNCLOS’ scope.
This article concludes that we already have AUVs in activities going on as described in the third scenario, indicating a legal loophole. Furthermore, UNCLOS provisions are insufficient since the current use of AUVs is beyond the maritime research field (e.g. for non-related research activities, such as mining, oil platforms surveillance, and military operations). Thus, a new international law framework must encompass the functionalities that AUVs currently have on top of covering what AUVs might be able to do in the near future.
Daiana Seabra Venancio is a researcher at the Simulations and Scenarios Laboratory of the Brazilian Naval War College. She has a Master’s degree in Law with focus on International Law from the Rio de Janeiro State University (UERJ), Brazil. In 2022, she will start her PhD in International & Political Studies at UNSW Canberra, Australia. She is a former Assistant Professor at UniSãoJosé Law School, Rio de Janeiro, Brazil.