Legalities and Technicalities of Unmanned Marine Systems

Anushka Saxena

10th April 2021

Drones – we have heard of them, we have seen them in action, and we have had our own interpretation of how they work. However, the one thing we all understand is that their autonomous nature is a technological stride, and that autonomous systems are being developed rapidly, not just in the most commonly observed aerial format, but also for use under water. These are called the “Unmanned Marine Systems”, further subdivided as Unmanned Underwater Vehicles (UUVs) or USVs (Unmanned Surface Vehicles). With new and emerging forms of warfare taking over the world, a few questions remain unanswered in the context of UMSs. For example, to what extent do existing international regulations govern the UMS’s use, development and proliferation? What is the scope for interpretation and reform, in terms of the autonomy these vehicles exercise and the legalities they can work with? How is UNSCR 1540’s applicability, as well as applicability of other existing instruments, operational here? This article attempts to provide potential answers.

In terms of UMSs, the word “ships” remains largely undefined, which creates legal barriers. If we read the United Nations Convention on the Law of the Sea (UNCLOS)’s definition of “ships” in the context of its own text (as is allowed by VCLT Article 31), a “ship” appears to be largely manned. We must integrate usage of international frameworks that provide a more inclusive definition of “ships”, which can largely be applicable to activities of UMSs. For example, the 1973 Pollution Convention (modified by the 1978 Protocol), defines “ships” as “…vessels of any type whatsoever operating in the maritime environment”, and the 1996 protocol to the London Dumping Convention (Amended), in its explanation, states “vessels and aircrafts are waterborne and airborne craft of any type”. If we take the example of “pollution” as a means of warfare (which finds direct protection under articles 35 (3) and 55(1) of the Additional Protocol 1 of 1977), UMSs being used to pollute international waters fall both, in the definition of “ships” or “vessels” as per the documents mentioned above, and can also be regulated using the same documents as highlighted above.

The UNSCR 1540 (2004) can be applicable to any means of delivery for a weapon of mass destruction (say, usage of a USV for dispersal of a biological agent). But the shortcoming is in establishing the physical or technological standards that can determine whether or not a certain unmanned system has the capacity to be “used” to proliferate a WMD. For example, the same UMS used for Surveillance or Mine Counter Missions can be used as a prohibited means of delivery as per the definition of the UNSCR 1540, as well (For example, Russia’s ‘Poseidon’ Underwater torpedo is “nuclear-armed” and capable of delivering nuclear payloads, and despite the state being party to UNSCR 1540, it has tested this potential means of delivery for a nuclear weapon 11 times in international waters. It is also capable of dispersing radiological waste).

Here, a potential solution would be the establishment of an “Unmanned Systems Monitoring and Verification Committee” (UCMVC) with the purpose of monitoring and verifying adherence to International obligations under the UNSCR 1540, the Geneva Conventions and the Arms Trade Treaty (which obligates states parties to review export applications of a list of 7 Conventional Weapons as defined by the UNROCA, as well as small arms and light weapons). The structure and functioning of said Committee can be defined as per Article 29 of the UN Charter, which gives the United Nations Security Council to “establish such subsidiary organs as it deems necessary for the performance of its functions”.

Article 36 of the Additional Protocol 1 of 1977 requires States parties to review and report the adoption of a new (maritime) weapons system. This has become widely accepted as Customary International Law. In the said context, considering the lack of monitoring mechanisms present in case of unmanned marine systems, and the potential out-of-proportion acts they may commit in international waters owing to lack of meaningful human control or redressal-based regulatory frameworks (especially for non-polluting UMSs), upholding the weapons review proceedings is a must. Its results must be used to determine whether not further development/ acquisition/ use of said UMS must be undertaken, keeping in mind their resultant capacity to cause superfluous injury or unnecessary suffering, or have indiscriminate effects.

The ability of a UMS to follow the principle of “distinction” (the violation of which is perhaps the greatest issue concerning use of a system without meaningful human control), as defined by Customary International law, must depend on technological oversight, which will be only possible through a private-public-global partnership. Confidence-Building Mechanisms (CBMs) must also be initiated in this regard, and must be open to attend for both State and Private entities, considering the role of the latter in development of unmanned systems that militaries, air force and navies of nations go on to use (For example, the U.S military recently introduced use of its “out-of-loop” RCVs-Light in its military, and these have been produced and delivered by the British company “QinetiQ”). In case UMSs do undertake an action in violation of the four principles of international Humanitarian Law, its subsequent legalities can be looked at in the following three ways:

  1. “Active responsibility” of Engineers/ Developers, as it would require engineers and developers of unmanned systems to take into account societal impacts of technology while developing it, so as to proactively integrate social values as technological, if not “moral” obligations of the machine;

  1. “Meaningful Human Control”, which entails both, the fact that the UMS should be able to respond in accordance with human morality and reciprocate to a military action considering it to be “human” in nature (unless and until its contact is with another unmanned system), and the traceability of the UMS’s response/action should be to a human being that developed or controls it;

  1. “Governance” and Institutionalisation of Perspectives on Control, which entails development of robust domestic institutions and forums to supervise behaviour of the unmanned system and its developer, and to govern its activities by testing it, before implementation of any system in society.

Simply put, aspects of reviewing actions of Unmanned Systems in general, and Unmanned Marine Systems in particular, are manifold, but not without their loopholes. The analysis brings out the importance of partnership and solidarity, as well as development of regulations, taking into account societal and governance perspectives of control. Perhaps the biggest vacuum in deployment of an unmanned system is that of accountability and moral responsibility. How such a system utilises principles of IHL will be highly subjective, unpredictable and uncontrollable. Hence, active responsibility of the developer, meaningful human control, and governance in perspectives of control, are pertinent.

 ***The author is a currently a Research Intern at the Kalinga Institute of Indo-Pacific Studies (KIIPS)***