Legal aspects of unmanned maritime systems – Author Mr. (just. mil.) PhD. Mădălina PREDA
Article published in the Naval Forces Bulletin No. 37/2023
MARITIME SECURITY FORUM
Abstract
International maritime law is based on the presumption that ships are commanded and operated by a crew led by a captain. The development and operation of unmanned maritime systems (UMS) has created challenges in the application of existing international law, mainly related to determining the legal status of these capabilities. Important legal aspects concerning UMS arise from the provisions of the International Convention on the Law of the Sea, conventions adopted by the International Maritime Organization, and international humanitarian law in the maritime field. Using documentary research and legislative analysis, this article discusses the legal status of UMS based on the classification of these capabilities as “ships” and “warships,” as there is no unanimously accepted definition in maritime law. The classification of UMS as ships is particularly important, as ships enjoy the navigation rights provided for by international law and national legislation.
Keywords: UMS, ship, warship, autonomous systems, navigation safety.
- Introduction
Autonomous or remotely piloted systems can operate in the air, on the surface, and underwater to carry out intelligence, surveillance, and reconnaissance missions. Remotely operated or autonomous systems covering all combat environments are generically referred to as US (Unmanned Systems).
Unmanned Systems (US) can be classified as follows:
- UAS (Unmanned Aerial System), for the air environment;
- UGS (Unmanned Ground System), for the terrestrial environment;
- UMS (Unmanned Maritime System), for the maritime environment.
To describe unmanned or autonomous vessels, the specialized doctrine uses various terminology such as: Unmanned Surface Vessels (USV), Unmanned Maritime Vehicles (UMV), and Remotely Operated Vehicles (ROV). The range of names and acronyms used to describe these systems does not ensure the integration of this equipment into international maritime law.
The International Maritime Organization (IMO) uses the term Maritime Autonomous Surface Ships (MASS), which are defined as “ships that, to a varying degree, can operate independently of human interaction.” For consistency, the term Unmanned Maritime Systems (UMS) will be used in this article to refer to unmanned vessels in the maritime environment.
UMS currently in operation are mainly used for marine scientific research missions and military operations. The purposes of UMS also include coastal surveillance and patrol activities, as well as search and rescue operations at sea. It is therefore clear that “the increasing use of autonomous naval technologies and the prospect of supporting land-based functionality—including control elements—has far-reaching consequences for operating vessels, but also for surrounding vessels, insurers, and the general public”[1] .
The operation of UMS has numerous benefits:
a) operational safety: due to the lack of crews on board, accidents are reduced;
b) reduced operating costs: due to the absence of crew labor costs, which offset the high initial investment and maintenance of control and operations centers;
c) energy efficiency and environmental impact: the absence of crews would allow UMSs to be lighter in size, reducing fuel consumption and pollution;
d) security: without a crew to be held hostage for ransom, UMS should be less valuable targets.
The use of UMS in combat operations is primarily determined by the desire to gain a clear military advantage over the enemy and reduce human casualties. Technological advances in weapons have led to better humanitarian protection for the civilian population by improving the accuracy of strikes. However, with regard to the use of autonomous weapons, Human Rights Watch (HRW) has published a report concluding that the use of autonomous combat systems presents “difficulties in meeting the requirements of international humanitarian law, such as respect for the principles of distinction and proportionality in situations of armed conflict”[2] .
Moreover, the International Committee of the Red Cross has reiterated that “states should agree on the type and degree of human control necessary to ensure compliance with international law and to address ethical concerns”[3] .
The use of UMS has generated numerous interpretations from the perspective of international maritime law contained in a multitude of treaties and conventions governing naval activities. The most important of these conventions are:
- United Nations Convention on the Law of the Sea (UNCLOS);
- Convention on the International Regulations for Preventing Collisions at Sea (COLREG);
- International Convention for the Prevention of Pollution from Ships (MARPOL);
- International Convention for the Safety of Life at Sea (SOLAS);
- International Convention on Standards of Training, Certification, and Watchkeeping for Seafarers (STCW).
International legislation is one of the pillars on which the operation of USVs must be based. On the other hand, “the development of unmanned vessels cannot be separated from technological and market developments, as well as the support of national policies and laws”[4] .
- Classification of UMS according to the automation system
The legal regulation of UMS depends on the distinction between the different methods of controlling these systems, as there are major differences between remotely piloted and fully autonomous vehicles.
Autonomous ships are equipped with technology capable of making independent decisions during operation, based on algorithms that allow them to navigate safely and avoid collisions. On the other hand, in the case of remotely controlled ships, decisions are made by an operator on shore or on another naval platform.
In a study entitled “[5] ” published on June 3, 2021, the IMO divided UMS into four distinct categories based on their degree of autonomy:
- level one: the ship has the ability to perform automated processes and decision support; however, the crew is present on board to operate and control the ship’s systems;
- level two: the ship is remotely controlled, with a crew on board. The ship is controlled from an alternative location; however, crew members remain on board to take control of the ship’s functions and systems if necessary;
- Level three: remotely controlled ship, no crew on board;
- level four: fully autonomous ship, the operating system is capable of making decisions on its own. There is no crew on board.
The classification is important because “different categories of unmanned ships pose different challenges from a regulatory perspective, particularly with regard to how the ship is controlled. The legal framework will therefore need to be flexible, so as to ensure that the objectives of the numerous regulations are protected, regardless of how the ships are controlled and operated”[6] .
International doctrine has discussed UMS on the basis of the principle of equivalence or analogy. For example, in the case of remotely piloted systems, the operator could be assimilated to the master or crew under certain aspects of international maritime law. However, the doctrine does not take into account all types of UMS, as fully autonomous ones cannot be assimilated in this way.
These different degrees of control influence the ability of UMS to comply with provisions of international maritime law designed for crewed ships. For example, an MUV with a crew on board would subsequently be subject to the International Convention on Standards of Training, Certification and Watchkeeping for Seafarers, which applies to “all seafarers serving on board seagoing ships.” However, the Convention, in its current form, would not apply to fully autonomous level four ships. Some unregulated situations become apparent in the case of autonomous UMS, such as the training of persons who design operating algorithms.
- Legal aspects regarding the definition of a ship
The legal interpretation of international maritime law with regard to UMS starts from clarifying the definition of the term “ship” in accordance with the provisions of international treaties. Several IMO conventions provide definitions of ships in their text.
The London Dumping Convention states in its preamble that “vessels and aircraft are craft of any kind carried on board ships and in the air”[7] . The London Convention therefore includes airships and floating vessels, whether self-propelled or not, within its scope.
The International Convention for the Prevention of Pollution from Ships (MARPOL) (as amended by the 1978 Protocol) classifies a ship as “a vessel of any type operating in the marine environment and includes flying boats, air-cushion vehicles, submersibles, floating craft, and fixed or floating platforms”[8] . The definition of a ship under MARPOL therefore includes UMS capabilities. However, MARPOL contains articles that limit its applicability based on size. Specifically, MARPOL’s applicability is limited to oil tankers exceeding 150 tons or other ships exceeding 400 tons. This size restriction has the effect that most UMS currently in operation would not be required to comply with MARPOL due to their size, despite meeting the definition of a ship. As USV capabilities continue to develop, their size is expected to increase, and MARPOL may become applicable to some. Consequently, MARPOL in its current form cannot ensure the protection of the marine environment from pollution generated by all USVs.
The Convention on Civil Liability for Oil Pollution Damage defines a ship as “a seagoing vessel and any vessel of any type constructed or adapted for the carriage of oil in bulk as cargo”[9] .
The United Nations Convention on the Conditions of Registration of Ships defines a ship as “any self-propelled seagoing vessel used in international maritime transport for the carriage of goods, passengers, or both“[10] , without excluding unmanned vessels from the scope of the legislation.
The International Regulations for Preventing Collisions at Sea (COLREG) define a vessel as “any craft which is or may be used as a means of transportation on water”[11] . The COLREG rules are essential for maintaining the safety of international waterways as they provide rules for navigation in all weather conditions, detailing how vessels should act in certain situations, such as right of way. COLREG applies to “all vessels on the high seas and in all waters connected with them, navigable by seagoing vessels”[12] .
The SOLAS Convention is the most important international treaty governing ship safety. Unlike the COLREG Convention, the SOLAS Convention does not provide a definition of a ship. Instead, the Convention applies to “ships engaged in international navigation“[13] . However, the applicability of SOLAS is limited in terms of tonnage, and the SOLAS Convention does not generally apply to cargo ships under 500 tons. Cargo ships are defined as any ship other than a passenger ship.
Thus, according to these conventions, the term “ship” is interpreted according to the purpose of these documents, with some nuances in the definition. However, in the legislation selected above, the presence of a crew on board is not mandatory, and consequently the documents do not exclude unmanned ships from the maritime domain. We can therefore deduce that UMS must have the same rights and responsibilities as ships with a pilot on board. This creates challenges depending on the classification or function of the UMS in question.
- Legal interpretation of the vessel under UNCLOS
The United Nations Convention on the Law of the Sea, concluded in Montego Bay (Jamaica) on December 10, 1982, ratified by Romania through Law No. 110 of October 10, 1996, does not distinctly define the term vessel. However, its provisions provide elements for defining the concept in terms of characteristics and principles.
The inclusion of UMS in the category of ships is important in terms of the obligations and rights conferred by the law of the sea, such as registration, compliance with collision regulations, and the obligation to provide assistance at sea. Ships also have the right of innocent passage through a State’s territorial sea, the right of transit passage through straits, and the right of freedom of navigation on the high seas.
The interpretation of UMS under UNCLOS is circumstantial because, at the time the Convention was drafted, it was not possible to anticipate the development of maritime systems in such a way that they could be operated without a crew on board. Therefore, although UNCLOS does not define the term “ship,” when interpreted in the context of its own provisions, as required under Article 31 of the Vienna Convention on the Law of Treaties, it appears to be understood that ships are operated by a crew”[14] .
In this way, the application of UNCLOS is challenging in the case of MSU. Although there are no express provisions prohibiting the use of MSU in UNCLOS, there are a number of articles that are susceptible to various legal and operational interpretations.
The UNCLOS regime is based on the principle of flag state supremacy. According to Article 91 of UNCLOS, each state establishes the conditions for granting nationality to ships, registering ships in its territory, and flying its flag. Ships have the nationality of the state that has authorized them to fly its flag, which creates a substantial link between the state and the ship.
Although Article 91 does not specifically require the registration of MSVs, this registration of ships by the flag state provides specific protection to registered ships because it allows for the implementation of international regulations designed to ensure the safety of ships and the environment.
A number of challenges arise when applying the UNCLOS regime of flag state registration and regulation to MUVs. The requirement for a genuine link with the flag state is one of them, as in the case of remotely operated vessels this can be done from anywhere in the world. Furthermore, fully autonomous ships can be operated by a computer program designed in another country. This is one of the elements that requires regulatory clarification in the case of USVs.
Also, according to Article 94 of UNCLOS, which defines the obligations of the flag state, every state must effectively exercise its jurisdiction and control in the administrative, technical, and social fields over ships flying its flag. Specifically, states are required to maintain a shipping register listing the names and characteristics of ships flying their flag, except for those which, due to their small size, are not covered by generally accepted international regulations. Furthermore, states shall exercise jurisdiction over any ship flying its flag, its captain, officers, and crew.
The specific measures incumbent upon States to fulfill their obligations under international regulations are set out in UNCLOS as follows:
“(a) every ship shall be inspected, prior to its entry in the register and periodically thereafter, by a qualified maritime inspector to certify the conformity of the navigation instruments and equipment with the requirements for the safety of navigation;
b) every ship is entrusted to a master and officers who possess the necessary qualifications, particularly in the areas of maneuvering, navigation, and communications. The crew must be proportionate to the type, size, and equipment of the ship;
c) the master, officers, and, to the extent necessary, the crew are trained and comply with applicable international rules on the safety of life at sea, collision avoidance, prevention, reduction, and control of marine pollution, and maintenance of communications”[15] .
It is clear that this article implies the presumption that a ship will have a crew. Such an approach subsequently raises a number of difficulties with regard to the regulation of USVs by the flag state. However, the international community, including the IMO, has decided that these systems cannot be banned solely on the grounds that there is no crew on board, with responsibility for their operation in some cases falling to operators or, more difficult still, to technicians.
Given the difficulty of explicitly classifying MUVs within the classic characteristics of ships as defined by UNCLOS, it is interesting to analyze MUVs in terms of maritime equipment or devices.
According to Article 194 of UNCLOS, states shall take the necessary measures to prevent, reduce, and control pollution of the marine environment, whatever its source. In this regard, the Convention distinguishes between sources of pollution:
– pollution by ships, including the regulation of the design, construction, equipment, and operation of ships;
– pollution from installations or equipment used for the exploration or exploitation of natural resources on the seabed and in its subsoil, including;
– pollution from other installations or equipment operating in the marine environment, including the regulation of the design, construction, equipment, and operation of such installations and equipment.
In addition, Article 209(2) The wording of the two articles suggests that certain MSUs could fall under these provisions and therefore be classified as maritime devices or equipment.
The wording of the two articles suggests that certain MSUs could fall under these provisions, thus qualifying as maritime devices or equipment.
- Innocent passage and transit passage under UNCLOS
In full accordance with UNCLOS, innocent passage means navigation in the territorial sea for the purpose of:
‘(a) to pass through without entering internal waters or calling at a roadstead or port facility situated outside internal waters; or
b) entering or leaving internal waters, or calling at or leaving such an anchorage or port facility”[16] .
In accordance with Article 17 of UNCLOS, ships of all coastal or landlocked states enjoy the right of innocent passage in territorial waters. This right is also granted by Article 20 to submarines and other submersible vehicles, provided that they navigate on the surface and fly their flag.
Therefore, in the strict interpretation of these provisions, the right of innocent passage is granted to UMS that qualify as ships as well as to those operating underwater (Under Water Vehicles – UUV) in compliance with the cumulative conditions.
Correlatively, according to Article 38 of UNCLOS, the right of transit passage through straits is granted to all ships and aircraft. Transit passage means exercising the freedom of navigation and overflight solely for the purpose of continuous and expeditious transit through straits between one part of the high seas or an exclusive economic zone and another part of the high seas or exclusive economic zone.
Thus, the inclusion of UMS in the category of ships leads to the idea that they must comply with the rules of navigation established by UNCLOS. Thus, when UMS exercise these rights without prejudice to the peace, order, or security of the coastal state, the latter cannot prevent their passage through its territorial or archipelagic waters.
- Responsibility of the ship’s captain
UNCLOS, in Article 94(4)(b), requires the flag state to ensure that each ship is under the command o UNCLOS, through Art. 94 para. (4) lit. b), requires the flag state to ensure that each ship is under the command of a captain and officers who possess the appropriate qualifications to ensure that a ship is safely equipped from the point of view of saving human life at sea.
In the case of UMS, the problem is related to the transfer of the master’s duties to the shore-based operator. Given that the legal provision requires the flag State to ensure that the ship is under the responsibility of a competent master without any additional conditions, this does not prevent the master from being stationed ashore, as long as he is properly trained to ensure safe navigation at sea.
In the same vein, the SOLAS Convention enshrines the obligation of rescue, incumbent on the master of a ship at sea, who must be able to “provide assistance upon receiving a signal from a source indicating that persons are in danger at sea.” Although in the first degrees of autonomy it can be argued that the person controlling the ship can be considered the captain, this does not apply in the case of a fully autonomous ship of degree four. With regard to the provisions of Article 94, the Convention does not provide a specific and precise answer regarding UMS. Therefore, “it has not been adequately determined whether a ship without a pilot on board can fit into the existing legal framework and meets the requirement for a maritime crew.“[17]
This is important in light of Article 97 of UNCLOS, which states that in the event of a collision or any other maritime incident on the high seas that may engage the criminal or disciplinary responsibility of the master or any other person in the service of the ship, no criminal or disciplinary proceedings may be brought except before the judicial or administrative authorities of either the flag State or the State of which the persons concerned are nationals.
The role of the master therefore takes on particular importance in the criminal field for identifying the person responsible for offences committed in connection with the operation of the ship. Interpretation based on the principle of analogy is difficult to apply to the criminal liability of the shore-based operator. This area is related to artificial intelligence, so in order to better ensure a prompt response by criminal law to new situations that may arise from the UMS, the international community must adopt clarifying rules.
Another provision that poses operational and legal challenges for the functioning of the UMS relates to the obligation to provide assistance. Thus, according to Article 98 of UNCLOS, any State must require the master of a ship flying its flag, without endangering the ship, crew, or passengers, to:
a) to render assistance to any person in danger at sea;
b) proceed at full speed to the aid of persons in distress, if informed that they need assistance, to the extent that such action can reasonably be expected of it;
c) in the event of a collision, to assist the other ship, its crew or passengers and, as far as possible, to indicate to the other ship the name of its own ship, the port of registry of its own ship and the nearest port of call.
For example, a fully autonomous ship (level four) may be unable to comply with the obligation to provide assistance. Similar requirements are set out in the SOLAS Convention and the International Convention on Maritime Search and Rescue.
Therefore, although UNCLOS does not specifically prohibit the operation of UMS, it is clear from the above that, at present, the integration of UMS into the maritime domain is interpretative rather than explicit.
The integration of new and advanced technologies into the regulatory framework is one of the IMO’s strategic directions for the period 2018-2023. Following the session held in November 2022, further progress has been made in developing a goal-based instrument to regulate the operation of autonomous surface vessels.[18]
- UMS warships
For the purposes of UNCLOS, the term warship means “any ship which is a part of the armed forces of a State, bears the external marks of a military vessel, of its nationality, is under the command of an officer of the navy in the service of that State and registered in the list of officers or equivalent document, and whose crew is subject to the rules of military discipline“[19] .
At first glance, the UNCLOS provision suggests that UMS cannot have the legal status of warships, as there is no commissioned naval officer in command and no corresponding crew. Given the limitations imposed by UNCLOS on the classic definition of a warship, it could be argued that UMS should be classified as other state vessels used for non-commercial purposes and, as such, would enjoy the same legal status as a warship under UNCLOS.
Warships and other state vessels used for non-commercial purposes have immunity under Article 32 of UNCLOS, and the flag state bears international responsibility for any loss or damage caused to the coastal state as a result of non-compliance by these ships of the laws and regulations of the coastal state concerning transit through the territorial sea or of international provisions.
A consequence of the integration of UMS into the category of warships or government vessels used for non-commercial purposes is related to the right to perform certain important missions, including the seizure of other vessels as a result of piracy, the exercise of a right of visit, the pursuit of a foreign vessel or its craft.
However, the legal status of warships is clearly distinct from that of other government vessels during an international armed conflict, in which only warships have the right to exercise belligerent rights. Therefore, in line with the integration of UMS into the category of ships, it can be considered that UMS belonging to the armed forces of a state cannot be excluded from the scope of UNCLOS or international humanitarian law as long as they perform military missions.
- Conclusions
International maritime law includes a series of conventions on safety, pollution, and security that can be applied to UMS. Although the drafting of international conventions only took into account manned ships, regulations on collisions, crew training standards, pollution at sea, and safety contain definitions of ships that may include, or do not specifically prohibit, UMS.
In practice, the operation of UMS raises a number of challenges from the perspective of international maritime security law. First, most UMS currently in operation are not large enough for the SOLAS Convention to apply to them.
Important legal aspects regarding the operation of USVs arise from UNCLOS. The flag state obligations set out in Article 94 of UNCLOS raise challenges with regard to the regulation of USVs. These challenges include: how the terms ‘master’ and ‘crew’ are defined in the context of MSU capabilities, what qualifications are appropriate for occupying and exercising these positions, and the legal status of these persons in relation to the flag State when they are physically located in another country. Applying UNCLOS rules by analogy by transferring the rights and obligations of the master to the remote operator becomes irrelevant when considering fully autonomous UMS. Furthermore, UNCLOS presents difficulties of applicability to UMS in terms of the registration requirements for these systems and the associated responsibilities of the flag state.
From the legal analysis carried out, UNCLOS does not specifically prohibit the classification of UMS as ships, an aspect highlighted by both international doctrine and the results of exercises carried out by the IMO. However, UMS operations pose significant challenges to existing rules of international maritime law. These instruments do not currently prevent the operation of UMS, but changes to international regulations are needed to provide certainty as to how UMS can operate under these conventions.
Autonomous systems are constantly evolving and are currently part of national defense strategies. As with any new weapon, autonomous systems should be analyzed in accordance with international humanitarian law (IHL), which governs the means and methods of warfare. The use of UMS in the military raises challenges regarding the application of Article 36 of the 1977 Additional Protocol I, which requires States Parties to review and report on the adoption of a new weapons system. In this context, monitoring mechanisms are needed for unmanned maritime systems to ensure compliance with the principles of international humanitarian law in the event of armed conflict.
As technology in the field of autonomous systems used in the maritime industry continues to develop, it is imperative to adopt international provisions on maritime law that create a regulatory framework adapted to the capabilities of UMS.
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[1] One Sea, Autonomous Ships, Terms of Reference for Rule Development, p3, text available at https://one-sea.org/wp-content/uploads/sites/2/2022/04/one-sea-white-paper-autonomous-terminology-final.pdfext available at https://one-sea.org/wp-content/uploads/sites/2/2022/04/one-sea-white-paper-autonomous-terminology-final.pdf
[2] Human Rights Watch, Shaking the Foundations: The Human Rights Implications of Killer Robots,
text available at https://www.hrw.org/sites/default/files/reports/arms0514_ForUpload_0.pdf.
[3] ICRC, Autonomy, artificial intelligence and robotics: Technical aspects of human control, Geneva, 2019, p. 28.
[4] Li Minhe, A legal study on challenges confronted by unmanned ships, World Maritime University, Dalian, Sweden, 2019, p. 36.
[5] Outcome Of The Regulatory Scoping Exercise For The Use Of Maritime Autonomous Surface Ships (Mass) text available at httpshttps://wwwcdn.imo.org/localresources/en/MediaCentre/PressBriefings/Documents/MSC.1-Circ.1638%20-%20Outcome%20Of%20The%20Regulatory%20Scoping%20ExerciseFor%20The%20Use%20Of%20Maritime%20Autonomous%20Surface%20Ships…%20(Secretariat).pdf
[6] Maritime law in the wake of the unmanned vessel, text available at httpshttps://www.hellenicshippingnews.com/wp-content/uploads/2017/08/svw_maritime-law-in-the-wake-of-the-unmanned-vessel.pdf
[7] 1996 Protocol to the London Convention, Preamble.
[8] Marpol, Art. 2 para. (4)
[9] International Convention on Civil Liability for Oil Pollution Damage, 1992, Art. 1(1).
[10] United Nations Convention on Conditions for Registration of Ships, Art. 2.
[11] Colreg, Rule 3(a).
[12] Colreg, Rule 1(a).
[13] Solas, Rule 1(a).
[14] Michael N. Schmitt, David S. Goddard International law and the military use of unmanned maritime systems, International review of the Red Cross, no. 2/2016, p. 576.
[15] UNCLOS, Art. 94.
[16] UNCLOS, Art. 18.
[17] Jeremia Humolong Prasetya, The Operation Of Unmanned Vessel In Light Of Article 94 Of The Law Of The Sea Convention: Seamanning Requirement, Indonesian Journal of International Law, no. 1/2020, p. 120, text available at
[18] https://www.imo.org/en/MediaCentre/HotTopics/Pages/Autonomous-shipping.aspx
[19] UNCLOS, Art. 29.