The Australian Navy is undergoing a transformation with plans for nuclear submarines and the addition of six new “optionally crewed” vessels. These vessels have the advantage of being able to operate with or without a crew, allowing for longer operation times, increased stealth, and the ability for military personnel to avoid hostile environments. However, the legal implications of these uncrewed vessels are still unclear and could potentially increase the risk of conflict.
The United Nations Convention on the Law of the Sea, which regulates ocean activities, was negotiated before the existence of sophisticated uncrewed vessels. The convention establishes different zones and rules for states based on their proximity to the coast. Foreign ships and vessels have navigational rights in waters close to other states’ coasts, and naval vessels rely on these rights to operate. However, uncrewed vessels may not have a clear legal standing in terms of navigational rights.
The issue lies in the definition of “ships” and “vessels” under the convention. While there is ongoing debate about whether uncrewed devices qualify as ships or vessels, it is argued that they should be included based on the broad scope of the convention. However, the classification of uncrewed devices as “warships” poses a more significant problem. The convention explicitly defines warships as vessels under the command of a commissioned officer and manned by a crew under armed forces discipline. Without people on board, uncrewed devices may not meet this definition and may be excluded from engaging in belligerent activities.
Resolving this legal dilemma through a revision of the convention is unlikely due to the difficulty of getting all signatory states to agree. This raises concerns about increased risk-taking by states using uncrewed vessels. To mitigate this risk, states like Australia can contribute to the development of customary international law by clarifying their views on what uncrewed vessels are permitted to do. This transparency will help create a legal framework that can adapt to technological advancements.
