Unmanned Vessels Series: Issue I

While unmanned ships are evidently becoming a reality, the international regulatory framework under the auspices of the IMO, is not yet prepared for the introduction of these vessels into commercial operations. One fundamental issue, that needs to be addressed as a starting point, is the lack of an international consensus on the definition of an autonomous ship. The IMO has defined Maritime Autonomous Surface Ship (MASS) as “a ship which, to a varying degree, can operate independently of human interaction”[6]. This definition was produced for the purposes of the regulatory scoping exercise undertaken by the IMO to address autonomous shipping, and as such, does not represent an international consensus on the matter, nor does it constitute legal authority.

Another layer of complexity is added when one considers the different potential levels of autonomy that vessels can operate at. The IMO’s MSC 99 classification[7] recognises four degrees of autonomy for vessels. The first one is the smart-ship, with some automated processes but with seafarers on board to operate and control the vessel. The vessels falling within the second degree are remotely controlled from another location but seafarers are still on board. The third degree consists of vessels that are remotely controlled from another location and have no crew on board. Lastly, the fourth degree concerns the fully autonomous ship, which is “able to make decisions and determine actions by itself”[8] and which operates, of course, without seafarers on board. Lloyd’s Register (LR), on the other hand, divides autonomy levels in 6 categories, from AL 1 which represents fully manual operation, to AL 6, fully autonomous and unsupervised operation [9]. Similarly, in the UK Code of Practice for MASS [10], level of control is categorized from 0 (Manned) to 5 (Autonomous), forming 6 levels as well.

The existence of these different classification systems for autonomy make it increasingly difficult to achieve regulatory preparedness and uniformity in light of technological advancements. This stresses the importance of drafting a preliminary definition to be agreed by key players of the shipping industry and members of the IMO. In this way, each state can act accordingly in reviewing their national laws and commercial players can envisage the future more accurately. Such a definition needs to be broad enough to incorporate all foreseeable levels of autonomy of an unmanned vessel.

The challenges with the international regulations, as further analysed in this Series, are mainly in respect to unmanned ships, with the autonomous systems of manned vessels not posing such an obstacle in compliance. Automated processes and autonomous systems have been developed and used for years on manned vessels, being embraced within the current framework and without posing a problem for regulations. It would therefore be sound for a universal definition to focus only on unmanned vessels and their respective autonomy scale, which must be uniform across all states and organisations, if the industry is to achieve harmonisation.

In the absence of an international consensus, a coherent argument is that UNCLOS regulates how states deal with their vessels, but allows the question of what constitutes a ship to be determined by national laws. This is supported by Article 91 which provides that “Every State shall fix the conditions for the grant of its nationality to ships, for the registration of ships in its territory, and for the right to fly its flag”[12]. At a national level, the definition of a ship is mostly unconnected to manning requirements. Under English law, the term ship “includes every description of vessel used in navigation”[13], and even though navigation is undefined and it is unclear whether manning is its prerequisite, it is expected that unmanned vessels will satisfy the definition.

Assuming that unmanned vessels are ‘ships’ within the meaning of UNCLOS, they will be subject to the same obligations that apply to manned vessels and their flag states. The duties of the flag state are outlined in Article 94, effectively leaving such measures to the discretion of each state, by referring to an abstract set of “generally accepted international regulations, procedures and practices”[14] that the measures must conform to. In this way, UNCLOS preserves its relevance in times of shifting practices in the maritime industry.

The discretion given by UNCLOS to each state could have a problematic effect when it comes to the navigational rights of unmanned ships. A ship is subject to the laws of her flag state, based on her nationality, but also to the laws of coastal or port states, according to her physical location at any given point. Potentially, this could have the consequence of an unmanned vessel constituting a ship under the flag state’s law, but not under the law of the coastal or port state.

The flag state’s jurisdiction applies at all times, irrespective of the vessel’s location, whereas the parallel jurisdiction of coastal or port states increases with the proximity of the vessel to its shores. As follows, if the vessel is present in the ports or internal waters, the coastal state has broad jurisdiction over her and a wide discretion when it comes to entry conditions for foreign ships, by virtue of Article 25 UNCLOS. Theoretically, a coastal or port state could decline access to its ports or internal waters by unmanned vessels, as long as the refusal is reasonable, non-discriminatory and proportional. Further limiting the coastal state’s right, Article 300 provides that states “shall exercise the rights, jurisdiction and freedoms recognised in this Convention in a manner which would not constitute an abuse of right”[15].

When the vessel is passing through a state’s territorial sea, their rights and jurisdiction are more limited. By virtue of a well-established principle of the law of the sea, all ships have a right of ‘innocent passage’ through territorial waters of other states. Passage is deemed innocent “so long as it is not prejudicial to the peace, good order or security of the coastal State”[16]. Since passage of an unmanned ship would not be more prejudicial than that of a manned one, it seems that unmanned vessels will be mostly protected in territorial waters and allowed to pass through, as long as their activities do not fall within Article 19(2) UNCLOS.