December 27, 2016

By YAN Yan

On 20 December, 2016, the unmanned underwater vehicle (UUV) that had been seized by the Chinese Navy was handed back to the US Navy, bringing a conclusion to what US President-elect Donald Trump had labeled as an “unpresidented” event. The Chinese defense spokesman said that the UUV had been removed from the water to ensure the navigational safety of passing ships, but the US asserted that the UUV enjoyed sovereign immunity and that the Chinese action was in violation of international law. Jeff Davis, a Pentagon spokesman, described the UUV as a “sovereign immune vessel, clearly marked in English not to be removed from the water,” and said that it is US property and was lawfully conducting a military survey in the waters of the South China Sea. In a commentary written by James Kraska and Raul “Pete” Pedrozo, the authors hold the same argument that the UUV is a “vessel” that enjoys sovereign immune status, and as such the Chinese activity was a violation of international law.

 

The US argument is legally flawed if one takes a closer look at the rules of sovereign immunity in the law of the sea and how the US navy applies the UUV to its missions. Two types of ships are granted the sovereign immune status in the oceans according to articles 32, 95, and 96 of the 1982 UNCLOS: “warship” and “other government ships owned or operated by a State and used only on government non-commercial service.” First of all, I agree with Kraska and Pedrozo that the UUV is not a warship as defined by the 1982 UNCLOS. Article 29 of the UNCLOS defines “warship” as “a ship belonging to the armed forces of a State bearing the external marks distinguishing such ships of its nationality, under the command of an officer duly commissioned by the government of the State and whose name appears in the appropriate service list or its equivalent, and manned by a crew which is under regular armed forces discipline.” Although the Pentagon stated that the drone was US property, it was not “manned by crew,” and not clearly listed as a warship on active service.

 

But is the UUV a government “ship” owned or operated by a State and used only on government non-commercial service?

 

Kraska and Pedrozo hold that the UUV fits with the definition of “vessel” under Article 3 of the International Regulations for Preventing Collisions at Sea as “every description of watercraft, including non-displacement craft, WIG craft, and seaplanes, used or capable of being used as a means of transportation on water.” But if one looks at the applications of the UUV by the US Navy, it is easy to see that it is not at all used “as a means of transportation on water,” but mostly for purposes of reconnaissance and submarine warfare.

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Considering its functions and applications in the Navy, it is a lot more reasonable to classify the UUV as a “machine,” “robot” or “military device,” which is not entitled to sovereign immunity.

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The UUV is a subject that is able to operate underwater without a human occupant, and usually is divided into two categories: remotely operated underwater vehicles (ROVs) and autonomous underwater vehicles (AUVs). For a long time in its history, application of the AUV was highly limited by the available technology. It was not until the last decade that, with more sophisticated processing capabilities and more efficient power supply systems, it could be used for an increased number of tasks.

 

The US Navy released the Unmanned Underwater Vehicles Master Plan in 2000 and updated it in 2004, describing the missions, capabilities, and technological and engineering issues of the UUV. The Master Plan is chartered by the Deputy Assistant Secretary of the Navy and the Submarine Warfare Division. The nine Sub-Pillar capabilities as identified and prioritized in the UUV Master Plan are: intelligence, surveillance, and reconnaissance; mine countermeasures; anti-submarine warfare; inspection/identification; oceanography; communication/navigation network nodes; payload delivery; information operations; and time-critical strike. Among all, the top-priority mission is intelligence, surveillance, and reconnaissance. In addition to collecting data concerning the ocean surface (like electromagnetic and meteorological conditions) and underwater currents (like salinity and water temperature), the UUV is also capable of performing missions such as offshore surveillance, nuclear/biological detection, and satellite positioning. This is part of the reasons why global military powers have attached great importance to developing UUV-related technology. Highly adaptive to physical conditions and capable of performing multiple tasks in a highly efficient manner, the UUV has been widely viewed as a critical factor in future sea battles. In the wake of the Iraq War, the US began to see it as a primary threat to naval operations, and began to develop new types of UUV-based mine countermeasures.

 

Therefore, it’s very obvious to the author that the UUV is not used by the US Navy for the purpose of transportation and cannot be classified as a vessel that enjoys sovereign immune status. Rather, considering its functions and applications in the Navy, it is a lot more reasonable to classify it as a “machine,” “robot” or “military device,” which is not entitled to sovereign immunity.

 

In recent years, the rapid development of China’s Navy, particularly the development of its submarines, has drawn great attention from the US. By conducting intelligence gathering missions, the US has gradually built up an underwater surveillance and detection network covering China’s surrounding waters. It is reported that the US military has completed such networks in the Yellow Sea and East China Sea, and is now trying to build one in the South China Sea. It is predictable that more UUVs will be deployed by the US Navy in the South China Sea in the future. Although there are no definite rules on the application of such a “machine” or “device,” it is reasonable to assert that, like in any other international practice under the framework of the law of the sea, the operators of UUVs shall adhere to the spirit of peaceful use of the sea and ocean, show due regard to navigational safety, respect the coastal states’ laws and regulations, and refrain from using the UUV to perform such missions as undermining or threatening the coastal states’ security. Pointing fingers at each other is not conducive to the bilateral mil-mil relationship, or to the peace and stability in the South China Sea, as China and the US are now the two most important players in the region.

Link:

http://www.ippreview.com/index.php/Home/Blog/single/id/315.html

YAN Yan is Deputy Director of the Research Center for Oceans Law and Policy at the National Institute for South China Sea Studies, Haikou, China.

The NISCSS is authorized to re-publish this article on its website.