KIMS Periscope

KIMS Periscope No. 72

Problem with Operation of Underwater Drones

From International Legal Perspective

Lee Kibeom

Researcher
Asan Institute for Policy Studies

On December 15 last year, Chinese Navy (People’s Liberation Army Navy) seized an underwater drone using a small boat, which was being recalled by U.S. Navy survey ship USNS Bowditch about 50 nautical miles northwest of Subic Bay in the Philippines. China promised to return the seized underwater drone, but the conflict between the United States and China was aggravated because U.S. President-Trump reacted to the situation emotionally, saying that “China stole the drone.”. Within less than a week, the underwater drone seized by China was returned to the US and it seemed to be concluded as a small incident which revealed tension between the US and China over the South China Sea. However, through claims made by the two nations over the seizure and return of the underwater drone, there is a need to consider justification of operation of underwater drones under international law, as well as the status of underwater drones under international law.

The underwater drone seized by China is called “ocean glider” or “unmanned underwater vehicle (UUV).” Article 20 of the UN Convention on the Law of the Sea stipulates that “submarines and other submersible vehicles shall fly the national flag on the surface of territorial waters,” recognizing the existence of submersible vehicles. But this is merely a regulation on navigation of submersible vehicles in territorial waters. Then, the first question will be whether or not underwater drones must be classified as ships. If the answer is positive, it can be concluded that underwater drones can exercise freedom of navigation in international waters. However, there is a lot of controversy on whether underwater drones are able to “navigate” because underwater drones are relatively slow in motion and therefore easily affected by currents even if the target spot is entered in the underwater drone. Also, even if a forced conclusion is made that underwater drones can navigate, it is quite doubtful whether they can transport people or goods. This leads to a conclusion that underwater drones cannot be considered as ships and therefore cannot exercise freedom of navigation.

Then, can underwater drones be considered as “submersible vehicles” as specified in Article 20 of the UN Convention on the Law of the Sea? This is also not practicable because the word ‘vehicle’ implies the ability to transport people or goods. Rather, it is worth noting that Article 258 of the Convention mentions both scientific research equipment and scientific research facility, specifying that scientific research equipment used for a particular purpose or activity is “smaller” than scientific research facility, whereas Article 260 only mentions scientific research facility regarding safety zones. Therefore, it can be inferred that underwater drones should be classified as “scientific research equipment” according to the Convention.

When it comes to classifying underwater drones as scientific research equipment, Section 13 of the Convention provides legal guidelines on operation of underwater drones (although the US is not a party to the Convention, it recognizes that many of the provisions of the Convention serve as international practice). Article 87 of the Convention mentions freedom of conducting marine scientific research in international waters. Therefore, there is no legal problem for the US to operate scientific research equipment in waters which fall under international waters in the South China Sea. However, problems may arise only when the waters fall under territorial waters or exclusive economic zones (EEZ). Since sovereignty of coastal states is exercised in territorial waters, any marine scientific research shall be conducted in territorial waters upon explicit consent of the relevant coastal state and conditions provided by the coastal state under Article 245 of the UN Convention on the Law of the Sea. Also, according to Article 246 paragraph 2 of the Convention, marine scientific research in EEZ shall also be conducted upon consent of the coastal states. This means that when a nation operates underwater drones for marine scientific research in any territorial water or EEZ, it must obtain consent from the relevant coastal state.

After all, what matters is where underwater drones are operated. Without the decision of the International Court of Arbitration made on July 12, 2016 on the South China Sea dispute, it would have been controversial whether the US operated underwater drones in international waters or EEZ in the South China. But since the arbitrational decision legally identified the existence of international waters in the South China Sea, the US argument to operate its underwater drones, exercising freedom of navigation in international waters, is quite reasonable. However, since Article 240 of the Convention stipulates that “marine scientific research shall be conducted exclusively for peaceful purposes,” China may raise a question to the US whether the operation of US underwater drones includes military purposes.

Lastly, we must bear in mind that Article 262 of the UN Convention on the Law of the Sea stipulates, “Installations or equipment (for scientific research) shall bear identification markings indicating the State of registry or the international organization to which they belong and shall have adequate internationally agreed warning signals to ensure safety at sea and the safety of air navigation……” This means that it is obligatory to have identification markings and warning signals when operating scientific research equipment.

 

ISSUE NO. 72  FEBRUARY 11, 2017

Dr. Lee Kibeom (syshus@gmail.com) graduated from Yonsei University Law School and obtained Doctor of Laws from the University of Edinburgh Law School with a thesis focused on maritime boundary delimitation. He is currently a researcher at Asan Institute for Policy Studies.

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