Education

Adapt and Overcome: USNA’s Adaptive Leadership in Response to COVID-19

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By Philip Garrow, Ed.D.

From major universities to community colleges, the COVID-19 pandemic necessitated innovative thinking and flexible changes at American institutions of higher learning. In the span of two weeks, the United States Naval Academy (USNA) went from never before offering a remote course to shifting its entire undergraduate curriculum online. To accomplish this, it can be surmised that USNA’s most senior leaders employed adaptive leadership techniques to accomplish its primary mission of safely graduating and commissioning midshipmen on schedule. The rapid pivot to an online learning environment reflected the positive aspects of adaptive leadership theory, especially with respect to defining an institutional vision and incorporating feedback from faculty. Yet other actions exposed some of adaptive leadership’s dangers, such as administrators’ tendencies to favor policy uniformity at the expense of instructor autonomy as well as the proclivity to rush decisions in the face of time constraints. In the end, USNA’s transition to remote instruction is best characterized as a missed opportunity to reexamine minimum professional competency levels (i.e., “commissioning standards”) for military service. Although USNA leadership successfully harnessed adaptive leadership to meet its graduation objectives, it failed to see the pandemic response as a larger chance to assess, evaluate, and revise commissioning requirements and faculty practices.

Adaptive leadership 1 is a relatively new subject in leadership theory; in Dinh et al.’s 2013 review of 752 articles published in ten widely-cited academic journals, adaptive leadership was only explored in five pieces.2 While Nelson and Squires contend that adaptive leadership was originally developed for commercial applications,3 Heifetz and Linsky outlined its uses in the realm of education.4 A more concise framing from Campbell-Evans et al.5 summarized Heifetz et al.’s 2009 book on adaptive leadership by asserting the term explains the skills and strategies necessary to address gnarly situations, immediate problems, and changing conditions.6

With its wide-ranging impacts across all industries and professions, the 2020 COVID-19 pandemic represented a challenge of the highest order.7 Contending with it on “the Yard” (USNA’s informal nickname for its campus) fell primarily to USNA’s Superintendent and Provost. The Superintendent is a generally a three-star, active duty Navy Vice Admiral whose positional responsibilities are similar to those of a university president.8 The Provost, meanwhile, oversees curriculum design and delivery for the entire campus as well as personnel issues such as faculty hiring, review, and promotion.9 From March to August 2020, both released a series of emails notifying USNA personnel of institutional virus response efforts and remote learning support options. The plan as promulgated kept the institution on track to meet its annual timelines but did not offer a chance to reflect on which aspects of the traditional commissioning path were truly necessary.

USNA leaders displayed adaptive leadership by promulgating a cautious, flexible model for remote classes by clearly articulating an organizational vision.10 In light of rising COVID-19 cases nation-wide, in early March 2020 the Provost sent a pandemic-related email to faculty, simply passing along information on international travel.11 The day after, approximately 4,500 midshipmen left the campus on what they expected to be a week-long spring break. A few days later, the Provost sent another email, asking faculty to brainstorm strategies for shifting courses to online formats (such as Zoom or GoogleMeet) and to push those ideas up through their department leadership.12 Also, acting on information received firsthand from Maryland’s governor, the Superintendent announced that students would remain off campus for an additional two weeks.13 The decision was intended to give the faculty time to adjust their lesson plans for remote learning, which was employed for the rest of the semester and the summer term that followed.

ANNAPOLIS, Md. (May 20, 2020) The U.S. Navy Flight Demonstration Squadron, the Blue Angels, flies over Bancroft Hall as midshipmen sing the Alma Mater, Navy Blue and Gold, during the fifth socially-distanced, swearing-in event for the United States Naval Academy Class of 2020. (U.S. Navy photo by Stacy Godfrey)

One Provost email update acknowledged the challenges presented by a world-wide virus and admitted to looking to models from other institutions across the country.14 This made the decision-making process transparent and “user-centric”15 by soliciting faculty feedback – an improvement-science approach to adaptive leadership. The Provost exhibited a clear belief that unforeseen challenges required unprecedented solutions. But all emails were in service of a simple goal defined by the Superintendent: safely completing the semester (from a public health perspective) and getting midshipmen commissioned on time.16 As campus operations were streamlined, there did not seem to be much organized reflection about how minimal commissioning standards had long been defined and perpetuated. With Physical Fitness Assessments paused Fleet-wide for the second cycle of 2020, how defensible were the traditional USNA higher-than-the-Fleet standards for running, swimming, and the like?

Despite the laudable efforts outlined above to meet Fleet manning requirements safely, two drawbacks of the adaptive model emerged in USNA’s transition to online learning: the process became less user-centric and more directive over time, and last-minute changes in the name of improvement resulted in unnecessary staff and student burdens. Both the spring and summer 2020 terms were executed with students residing off-campus and completing only online coursework. Although the Provost solicited and acted on faculty feedback initially, as evidenced by his decision to shift school hours to the right in consideration of students living in the Pacific Standard Time zone,17 requests for suggestions from staff dwindled as the weeks wore on. Faculty autonomy with respect to attire18 or meeting synchronously or asynchronously19 were increasingly restricted by prescriptive directions. Rather than ask why the institution did things the way it traditionally had, the focus was on returning to pre-COVID standards and practices as soon as possible.

Educational systems are prone to return to previous methods and ways of operating,20 while leaders often face great temptation to issue unilateral solutions when achieving group consensus proves difficult.21 The ever-increasing volume of additional written instructions – in the form of USNA Academic Dean Notices – demonstrated that the adaptive flexibility of the early weeks of the pandemic gave way to the institution’s natural inclination to codify and standardize. The transparency of the thought process behind the early emails mutated into less forthcoming initiatives, such as a process for students to share course concerns with Associate Deans directly while bypassing the faculty and the chairs of academic departments.22

The extended nature of the pandemic eventually encouraged a tendency to think about how to return to old ways of doing things in the new environment, rather than stimulate improvement-science driven initiatives to ask what procedures deserved to be permanently eliminated.23 After expending considerable funds to outfit classrooms with remote learning tools like OWL camera and microphone devices, faculty were forbidden post-pandemic to use such devices rather than arrange for in-person substitutes. The insistence on returning to pre-COVID business-as-usual denied faculty the chance to refine and hone remote teaching skills they acquired during the crisis. At the very least, a better adaptive leadership approach would suggest faculty be given autonomy to decide when an in-person sub versus a remote session best suits their needs. The administration’s quiet shift from adaptive leadership to a more directive style caused problems that might otherwise have been avoided.

Another problem with adaptation and flexibility is that it can prove too tempting to continue to tinker with changes past the point where further adjustments are no longer optimal. After weeks of changes, a plan was made to teach remotely for the first two weeks of class and then divide students into “blue/gold” sections in order to decrease class sizes by half and facilitate six feet of separation between student desks.24 A week later, that plan was heavily modified such that only the first two days of class were mandated as remote and departments were under increased pressure to find teaching spaces large enough to accommodate regular class-sizes.25 Worse, student assignments to course sections were constantly in flux, with some First Year Composition English courses experiencing a full 50% change in assigned students as late as the afternoon before the first day of class.26 Such adjustments meant that some students were making two or three return trips to the campus bookstore in order to ensure they possessed the correct text for the instructor they were assigned.27 Curiously, most texts on adaptive leadership do not warn that flexibility can be carried too far. By failing to recognize the point at which further changes, even in the interest of optimization, were likely to cause unnecessary frustration and stress, USNA administrators placed too great a premium on top-down adaptation at the expense of efficiency and common sense.

The COVID-19 pandemic is the sort of gnarly, “multifaceted”28 problem that adaptive leadership is well poised to resolve. Yet USNA leadership delivered a mixed result, properly emphasizing shared goals and stakeholder buy-in during the initial response stages but succumbing to centralized and directive solutions as time progressed. The chance to question what elements of commissioning were truly required was overlooked and the opportunity to afford faculty greater voice in post-pandemic teaching options was missed. While it is important not to judge too harshly in light of the pandemic’s complexity, it is clear in retrospect that a summer stand down to reflect on the process and jointly reevaluate the options for the fall semester would have been well-advised, as would a similar reflective session at the conclusion of the COVID-19 crisis. USNA is a model of adaptive leadership; sometimes it just does not know when to stop adapting.

Lieutenant Commander Philip Garrow, USN, is a career Surface Warfare Officer and has completed guided missile cruiser, frigate, littoral combat ship, and destroyer squadron afloat tours. He holds a B.A. from Tulane University, M.A. degrees from Salve Regina University, the U.S. Naval War College, and the University of Maryland: College Park, and a doctorate in Entrepreneurial Leadership in Education from Johns Hopkins University. He currently serves as an Assistant Professor of English at the United States Naval Academy.

All views expressed and comments provided in this article are my own thoughts and opinions based on my professional and academic experience and expertise. They do not constitute (nor should be construed as reflecting) DOD, DON, or USNA official policy or endorsement.

Endnotes

1 Ali Baltaci and Ali Balci, “Complexity Leadership: A Theoretical Perspective,” International Journal of Educational Leadership and Management 5, no. 1 (2017): 30-58, doi: 10.17583/ijelm. 2017.2435; Glenda Campbell-Evans, Jan Gray, and Bridget Legett, “Adaptive Leadership in School Boards in Australia: An Emergent Model,” School Leadership & Management, 34, no. 5 (2014): 538-552, doi: 10.1080/13632434.2014.938038; Tenneisha Nelson and Vicki Squires, “Addressing Complex Challenges through Adaptive Leadership: A Promising Approach to Collaborative Problem Solving,” Journal of Leadership Education 16, no. 4 (2017): 111-123, doi: 1012806/V16/I4/T2.

2 Jessica E. Dinh, Robert G. Lord, William L. Gardner, Jeremy D. Meuser, Robert C. Linden, and Jinyu Hu, “Leadership Theory and Research in the New Millennium: Current Theoretical Trends and Changing Perspectives,” The Leadership Quarterly 25, (2014): 36-62, doi:10.1016/j.leaqua.2013.11.005.

3 Nelson and Squires, “Addressing Complex.”

4 Ronald Heifetz and Marty Linsky, “When Leadership Spells Danger,” Educational Leadership 61, no. 7 (April 2004): 33-37, https://www.wisconsinrticenter.org/wp-content/uploads/2019/04/6.3-When-Leadership-Spells-Danger.pdf.

5 Campbell-Evans et al., “Adaptive Leadership.”

6 Ronald A. Heifetz, Alexander Grashow, and Marty Kinskey, The Practice of Adaptive Leadership: Tools and Tactics for Changing Your Organization and the World, (Boston, MA: Harvard Business Press, 2009), 251.

7 Charles A. Goldman and Rita T. Karam, “College in America could be changed forever,” CNN, July 7, 2020, https://www.cnn.com/2020/07/07/perspectives/higher-education-pandemic/index.html; Annie Grayer, “Administrators prepared for Covid-19 to change life on campus, but students partied anyway,” CNN, August 21, 2020, https://www.cnn.com/2020/08/21/us/ university-college-covid-19-partying-quarantine-pandemic/index.html.

8 United States Naval Academy 2015 Faculty Handbook, 2015, https://www.usna.edu/ Academics/Faculty-Information/Faculty%20Handbook/ 15%20Faculty%20Handbook.pdf.

9 United States Naval Academy 2015 Faculty Handbook.

10 David J. O’Connell, Karl Hickerson, and Arun Pilluta, “Organizational Visioning: An Integrative Review,” Group & Organization Management 36, (2011), 103, doi: 10.1177/1059601110390999.

11 Andrew T. Phillips, personal communication, March 5, 2020.

12 Phillips, personal communication, March 11, 2020.

13 Sean S. Buck, personal communication, March 12, 2020.

14 Phillips, personal communication, March 11, 2020.

15 Anthony S. Bryk, Louis M. Gomez, Alicia Grunow, and Paul G. LeMahieu, Learning to Improve: How America’s Schools can Get Better at Getting Better, (Cambridge, MA: Harvard Education Press, 2015).

16 Sean S. Buck, personal communication, March 12, 2020.

17 Andrew T. Phillips, personal communication, March 20, 2020.

18 Andrew T. Phillips, personal communication, May 22, 2020.

19 Sharon Hazelton, personal communication, May 9, 2020; Jennifer Waters, personal communication, June 1, 2020.

20 Nelson and Squires, “Addressing Complex.”

21 Heifetz and Linsky, “When Leadership.”

22 Michelle Allen-Emerson, personal communication, April 20, 2020.

23 Bryk et al., Learning to Improve.

24 Samara Firebaugh, personal communication, August 4, 2020.

25 Samara Firebaugh, personal communication, August 11, 2020.

26 Philip Garrow, personal communication, August 18, 2020.

27 Temple Cone, personal communication, August 19, 2020.

28 Campbell-Evans et al., “Adaptive Leadership,” 542.

Featured Image: The U.S. Naval Academy holds the fourth, socially-distanced swearing-in event for the Class of 2020 on May 18, 2020. (U.S. Navy photo by Stacy Godfrey)

Podcast

Sea Control 542 – Ready to Dive with Curt Newport

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By Jared Samuelson

Author Curt Newport joins the program to discuss his career beneath the waves and his new book, Ready to Dive – Five Decades of Adventure in the Abyss. Curt is a pioneer in the development and operation of Remotely Operated Vehicles. He retired in 2022 after 47 years in the underwater profession.

Download Sea Control 542 – Ready to Dive with Curt Newport

Links

1. Ready to Dive – Five Decades of Adventure in the Abyss, by Curt Newport, Purdue University Press, 2024.

Jared Samuelson is Co-Host and Executive Producer of the Sea Control podcast. Contact him at Seacontrol@cimsec.org.

This episode was edited and produced by Jim Jarvie.

Podcast

Sea Control 541 – The Globe and Anchor Men with Dr. Mark Folse

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By Jared Samuelson

Dr. Mark Folse returns to the podcast to discuss both his own relationship with the Marine Corps as well as his new book, The Globe and Anchor Men: U.S. Marines and American Manhood in the Great War Era. Mark is a U.S. military and naval historian who works full time for the U.S. Army’s Center of Military History in Washington, DC.

Download Sea Control 541 – The Globe and Anchor Men with Dr. Mark Folse

Links

1. The Globe and Anchor Men: U.S. Marines and American Manhood in the Great War Era, by Mark Ryland Folse, University of Kansas Press, 2024. 

2. Sea Control 287 – Small Wars and More with Dr. Mark Folse, CIMSEC, October 24, 2021. 

3. Contested Valor: African American Marines in the Age of Power, Protest and Tokenism, by Cameron D. McCoy, University Press of Kansas, October 2023.

Jared Samuelson is Co-Host and Executive Producer of the Sea Control podcast. Contact the podcast team at Seacontrol@cimsec.org.

This episode was edited and produced by Jonathan Selling.

Law of Warfare

Unmanned Maritime Systems and Warships: Interpretations Under the Law of the Sea

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By Takeo Imura

Introduction

Unmanned systems technologies possess great potential for changing the landscape of military operations. Today’s unmanned systems include aircraft, ground vehicles, and surface and subsurface vessels.

Military forces are experimenting with unmanned systems, which are expected to help the military reduce casualties and increase mission endurance. The U.S. Navy enumerates various missions expected for unmanned systems and plans to substitute them for some existing manned platforms.1

Treating unmanned vessels as warships requires examining whether they meet the definition of a warship under the United Nations Convention on the Law of the Sea (UNCLOS). The legal status of naval vessels under UNCLOS varies widely depending on whether a navy operates its ships as warships, non-commercial government vessels, or accessories to conventional warships.        

This paper discusses whether unmanned systems can be considered warships under UNCLOS, especially with today’s voracious appetite for developing the technology; however, the legal status of unmanned vessels as warships remains uncertain. International agreements on the legal status of unmanned vessels would help establish the legitimacy of naval operations employing them.

Unmanned Vessels and Warship Status

Article 29 defines a 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.”2

Accordingly, four conditions must be met to determine whether unmanned vessels can be considered warships under UNCLOS. They are defined as a “ship,” bear “external marks” of the possessing flag state, are “under the command of an officer,” and are “manned by crew.” Each of these conditions is considered in the following analysis.

Ships

UNCLOS does not provide a specific definition of what constitutes a ship. Article 91 states, “[s]hips have the nationality of the State whose flag they are entitled to fly.”3 Further, article 92 provides “[s]hips shall sail under the flag of one State only…[and a] ship may not change its flag during a voyage or while in a port of call, save in the case of a real transfer of ownership or change of registry.”4 Accordingly, UNCLOS declares that all ships must maintain a genuine link with their state and fly their flag to show who possesses jurisdiction.5 Article 94 mandates that “[e]very State shall effectively exercise its jurisdiction and control in administrative, technical and social matters over ships flying its flag.”6 There are certain requirements the flag state must meet to maintain a genuine link between the ship and the State, such as undertaking measures “to ensure safety at sea.”7 Paragraph 3b of the same article requires flag states to regulate “the manning of ships, labour conditions and the training of crews, taking into account the applicable international instruments.”8

In the case of unmanned vessels, it would be difficult for a flag state to fulfill these requirements since they are unmanned. However, if the word “manning” is considered part of a greater flag state duty to ensure safety at sea, then this requirement can readily be met. Manning should not simply mean individuals being physically aboard. Additionally, the Vienna Convention on the Law of Treaties, Article 31, states, “any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation” is included in the meaning.9 Accordingly, the states party to UNCLOS may recognize unmanned vessels as ships unless such interpretation is contrary to the treaty’s terms, its object, or purpose and is evidenced by the subsequent practices of the parties. Evidence that many states are moving to accept unmanned vessels as ships can be found in the maritime transportation domain. Specifically, the International Maritime Organization (IMO) developed the maritime autonomous surface ship concept, or MASS.10 Considering the latitudes provided by the provisions of the Vienna Convention on the Law of Treaties, the IMO’s development of MASS demonstrates the definition of “manning” is not an obstacle to accepting unmanned vessels as ships under UNCLOS if flag states fill their requirements.11

UNCLOS is not the only treaty that defines what constitutes a ship. For instance, the International Convention for the Prevention of Pollution from Ships (MARPOL) defines a ship as “a vessel of any type whatsoever operating in the marine environment.”12 Also, the Convention on the International Regulations for Preventing Collisions at Sea (COLREGs), Part A, Rule 3a states, “[t]he word vessel includes every description of watercraft… being used as a means of transportation on water.”13 Similar to MARPOL, this definition encompasses a wide variety of vehicles, with the main difference being whether the vehicle is used for transportation on water. However, a ship without transporting something is difficult to imagine. Even unmanned vessels carry payloads that are not essential for navigation. For example, the SD1045 unmanned vessel is used for maritime environment research and can change payloads to adjust to user demands.14

Finally, the 1972 Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (London Convention) defines a ship more broadly as a “waterborne…craft of any type whatsoever….”15 Based on this provision, a vessel can be interpreted as any vehicle that operates in or above water.

In conclusion, unmanned vessels can be recognized as ships under UNCLOS or other treaties, given the broad definition of a “ship.” Therefore, a flag state has the legal authority to decide what device it will regard as a ship, provided it meets the minimal requirements of UNCLOS.16

External Marks

Generally, a flag, referred to as a naval ensign, is used as an external mark to show the status and nationality of a warship. Setting up a naval ensign on unmanned surface vessels may be possible. In the case of unmanned underwater vessels (UUVs), this requirement probably would need to be fulfilled by painting a flag or other substitute markings.

Under the Command of an Officer

There is no unified definition of the word “command.” One paper discussed the subject and stated, “…being in command does not require the person to make every decision and guide every action, and that the commander can be removed from the action to some extent.”17 This view is based on the military doctrines of the United States, Netherlands, France, and the North Atlantic Treaty Organization. This approach can be applied to the command of unmanned vessels, but the outcome may depend on the vessel’s degree of autonomy. There are three levels of human participation in the command of unmanned systems: “in the loop,” “on the loop,” and “out of the loop.”18

The concept of “in the loop” is that a human is continuously and significantly involved in the actions of the unmanned vessels, operating it remotely.19 The concept of “human on the loop” is one in which humans monitor unmanned vessels and influence autonomous decisions without directly operating the system.20 The human has veto power over the actions of the unmanned vessels, which otherwise operate independently.21 “Human out of the loop” applies when humans are not involved in autonomous decisions – the system has full operational autonomy. Human control relates to the software programming that governs the unmanned vessel’s actions in such cases.22

Unmanned vessels with “humans out of the loop” are controlled by high-end autonomous algorithms. Such unmanned systems equipped with weapons are categorized as lethal autonomous weapons systems (LAWS). Rules governing the operation of LAWS are currently one of the most controversial subjects in international law. Advocates for using LAWS in military operations focus on their contribution to military advantage as a moral justification.23 LAWS can reduce the loss of human life and expand operations into previously inaccessible areas.24 Further, they argue LAWS meet the requirements of morality because “autonomous robots in the future will be able to act more “humanely” on the battlefield […because] they do not need to be programmed with a self-preservation instinct.”25 Those who oppose the use of LAWS focus on the problem of accountability.26 Given the system’s autonomy and the unpredictability of decisions made by machine learning, it would be hard to identify the cause of flawed decisions and assign accountability. As one article puts it, “Where a human being makes the decision to use force against a target, there is a clear chain of accountability, stretching from whoever actually ‘pulled the trigger’ to the commander who gave the order.” 27 This is not the case with LAWS. While the commander can be identified and held accountable for the operation of unmanned systems with “in the loop” or “on the loop,” this is not the case with “out of the loop” systems.

Some propose that “[s]ince a commander can be held accountable for an autonomous human subordinate, holding a commander accountable for an autonomous robot subordinate may appear analogous.”28 If so, commanders that employ unmanned systems cannot escape the responsibility for their operation, whether a human is in the loop or not. Traditionally, command responsibility is only implicated based on reasonable foreseeability of an untoward action, and the commander failed to prevent it.29 The possibility that a commander can reasonably foresee what LAWS will do is remote. Even if unmanned systems were only operated for non-combat missions, such as information gathering in peacetime, responsibility for non-lethal violations of UNCLOS or domestic law would remain an issue. Usually, in the case of manned warships, the responsibility falls on the tactical-level commander, such as the commanding officer.

One solution some have proposed is to incorporate a recording function to provide a detailed operational log against which to hold a commander responsible. But is the tactical commander best positioned to reasonably foresee what the LAWS will do? Whether command responsibility lies with the tactical commander who deployed the system, the operational level commander who allocated the system to the tactical commander, or the commander responsible for the design and introduction of the system into the fleet remains unclear and the subject of debate. However, for the “command” requirement of UNCLOS Article 29 to be fulfilled, a commander must be aware of the operations conducted under his or her command. Since it is possible this will not be the case with LAWS, with humans “out of the loop,” it is an issue that remains unaddressed by international law.

Manned by a Crew

“Manned” is generally understood as a crew aboard a vessel. However, other laws that regulate or define ships do not include the condition of a crew being aboard. For example, U.S. code Title 33, section 4101 states unmanned systems are “…designed to function without an on-board human presence…”30 Other scholars point out in regard to the safety of life at sea (SOLAS),

“SOLAS relies on states to ensure the safe manning of their ships. There is no minimum number of persons required to be on board so long as the primary safety concern is met. It can, therefore, be argued that a crew numbering zero is technically ‘adequate’ provided the operation is safe.”31

At least in the private sector, crews are not required to be physically aboard unmanned vessels. Also, a boarded crew is not required in COLREG or MARPOL. That said, the history of the definition of warships might be different from ordinary ships.

A warship has a specific definition derived from the history of privateers in the 16th to mid-19th centuries.32 A privateer “…was a privately-owned vessel, outfitted as a warship, authorized by a recognized national government, through the issuance of a commission to attack.”33 On the one hand, privateers did not always come under the control of the government, and abuse of its rights and abnormal practices occurred. Ultimately, privateering was abolished in 1856 by the Paris Declaration.34 Nevertheless, the use of civilian ships in wartime continued. The Hague Convention No. VII, on International Convention relative to the Conversion of Merchant-ships in Warships of 18 October 1907, provided regulations about converting merchants to warships. A merchant ship converted to a warship was given the rights of a warship (mainly belligerent rights).35 The Hague Convention influenced the drafting of UNCLOS, specifically the requirements in Article 29.36 The key to properly reading UNCLOS Article 29 is to focus on the requirement that “crews [be] under the appropriate discipline.” Physical manning is not the primary point of the article.37 Thus, while some form of human control of the warship is needed to fulfill the condition of the existence of a crew, physical manning is not required.

Conclusion

This analysis discussed whether navies should operate unmanned vessels as warships under the provision of UNCLOS Article 29. Considering the discussions above, one can say that unmanned vessels with “human in the loop” or “human on the loop” fulfill the conditions of Article 29. However, unmanned vessels with “humans out of the loop” do not fulfill the current conditions of Article 29 and do not acquire the status of warships.

Undoubtedly, details of how to fill the requirements of “under the command of an officer” and “manned by crew” will be controversial with “out of the loop” unmanned systems. Concerning the command requirement, this paper concludes that commanders are at least responsible for the decisions to deploy unmanned systems, but the level of command responsibility remains unclear. Concerning the requirement that a ship has a crew, while some form of involvement of a ‘crew’ in the operation of the unmanned systems can fill the condition of Article 29, it might be difficult to meet the condition if autonomy develops to such a level that no crew involvement is required once the system is deployed; to be accorded the status of a warship requires “a crew which is under regular armed forces discipline.” Accordingly, navies that want to operate unmanned systems should carefully evaluate their desired missions and how to manage the command and crew requirements, especially in cases where unmanned systems will be fully autonomous.

Takeo Imura is an operational legal advisor for the Japan Maritime Self-Defense Force. He previously served as a faculty member in the Japan Maritime Self-Defense Force Command and Staff College Operational Legal Office and as a military professor at the U.S. Naval War College Stockton Center for International Law. Before transitioning into law, was a submarine officer for nine years.

References

1. DEPARTMENT OF THE NAVY, OFFICE OF THE CHIEF OF NAVAL OPERATIONS, HEADQUARTERS U.S. MARINE CORPS, DEPARTMENT OF HOMELAND SECURITY AND U.S. COAST GUARD, THE COMMANDER’S HANDBOOK ON THE LAW OF NAVAL OPERATIONS, NAVY WARFARE DEVELOPMENT COMMAND (Mar 2022), pg., 2.3.4.

2. United Nations Convention on the Law of the Sea, art 29, Dec. 10, 1982, 1833 U.N.T.S. 413, pg., 408.

3. Ibid. pg., 433.

4. Ibid.

5. No article in UNCLOS stipulates that a ship without nationality is itself illegal. However, the fact that stateless vessels are listed among the vessels subject to on-site inspection under article 110, along with pirate ships and unauthorized broadcasting ships, suggests that non-nationality ships are not positive entities. Besides, in chapter 5 of Maritime Law Enforcement, page 56 of “Maritime Crime: A Manual for Criminal Justice Practitioners” by the United Nations Office on Crime and Drugs in 2017 said ” States were traditionally opposed to the idea that a ship might have no nationality because this would imply that there is no jurisdiction applicable to that vessel. This would be against the desire of States to ensure that proscribed conduct is subject to some level of jurisdiction in all places…” Thus, a ship without nationality would understood as an unacceptable existence.

6. United Nations Convention on the Law of the Sea, Supra note 2, pg., 434.

7. Ibid.

8. Ibid.

9. Vienna Convention on The Law of Treaties, art 31, May 23, 1969, 1155 U.N.T.S. 332. pg., 340.

10. Autonomous shipping, International Maritime Organization, https://www.imo.org/en/MediaCentre/HotTopics/Pages/Autonomous-shipping.aspx (last visited Jun 27, 2024).

11. These requirements are found in UNCLOS Articles 91, 92, and 94.

12. International Convention for the prevention of pollution from ships, 1973, art 2(4), Feb. 17, 1978, 1340 U.N.T.S. 184, pg., 185.

13. Convention on the international regulations for preventing collisions at sea, 1972, Part A Rule 3, Oct. 20, 1972, 1050 U.N.T.S. 18, pg., 22.

14. THE WORLD’S MOST CAPABLE USVS, SAILDRONE, https://www.saildrone.com/technology/vehicles (last visited Jun 10, 2024).

15. Convention on the prevention of marine pollution by dumping of wastes and other matter, art 3(2) Dec. 29, 1972, 1046 U.N.T.S. 138, pg., 140.

16. Natalie Klein, How should the law treat underwater maritime autonomous vehicles?, The Strategist (May 4, 2023), https://www.aspistrategist.org.au/how-should-the-law-treat-underwater-maritime-autonomous-vehicles, (last visited Jun 11, 2024). (Discusses the legal challenges for the Australian Defence Force to adopt Maritime Autonomous Vehicles).

17. Rain Liivoja, Eve Massingham, and Simon McKenzie, The Legal Requirement for Command and the Future of Autonomous Military Platforms, 99 Int’l L. Stud. 638, 652 (2022) (discussing the definition of the word “command”).

18. Paul Scharre, Michael C. Horowitz, Working Paper: An Introduction To Autonomy In Weapon Systems, Center For a New American Security (Feb 13, 2015), https://www.cnas.org/publications/reports/an-introduction-to-autonomy-in-weapon-systems (last visited Jun 10, 2024), pg., 6.

19. Christof Heyns (Special Rapporteur), Report of the Special Rapporteur on extrajudicial,

summary or arbitrary executions, U.N. doc A/HRC/23/47 (2013), 39, 41, at 8.

20. Ibid.

21. Christof Heyns, Supra note 19, pg., 8.

22. Ibid.

23. Amitai Etzioni, Oren Etzioni, Pros and Cons of Autonomous Weapons Systems, Military Review 72, 72 (May-June 2017), https://www.armyupress.army.mil/Journals/Military-Review/English-Edition-Archives/May-June-2017/Pros-and-Cons-of-Autonomous-Weapons-Systems/,(introducing opinions about discussion of Autonomous Weapons Systems).

24. Ibid.

25. Ibid. pg., 74.

26. Ibid. pg., 75.

27. Amitai Etzioni, Oren Etzioni, Supra note 23. Pg., 75.

28. Christof Heyns, Supra note 19, pg., 15.

29. Ibid.

30. 33 U.S. Code § 4101 (2024).

31. Robert Veal, Michael Tsimplis and Andrew Serdy, The legal status and operation of unmanned maritime vehicles, Ocean Development & International Law (2019), https://doi.org/10.1080/00908320.2018.1502500 (last visited Jun 10, 2024), pg. 36.

32. Rain Liivoja, Eve Massingham, and Simon McKenzie, Supra note 17, pg. 660.

33. David J Bederman, Max Planck Encyclopedias of International Law(Subject: “Privateering”), Oxford Public International Law (Oct 2008), https://opil.ouplaw.com/display/10.1093/law:epil/9780199231690/law-9780199231690-e382?rskey=pMAj9J&result=1&prd=MPIL (last visited Jun 10, 2024).

34. Ibid.

35. Rain Liivoja, Eve Massingham, and Simon McKenzie, Supra note 17, pg., 662.

36. Myron H. Nordquist, Neal R. Grandy, Satya N. Nandan, and Shabtai Rosenne, United Nations Convention on the Law of the Sea 1982, Volume II A Commentary, 249, Martinus Nijioff Publishers(Aug 1993). Note that these were already included in the draft of articles made by the International Law Committee in 1956.

37. Malgorzata Materna, Adjusting the Aperture: The International Law Case for Qualifying Unmanned Vessels as Warships, 100 Int’l L. Stud. 472, 452 (2023) (discussing differences in crew condition of warships between HC7 and UNCLOS).

Featured Image: A Seahawk medium displacement unmanned surface vessel participates in U.S. Pacific Fleet’s Unmanned Systems Integrated Battle Problem in the Pacific Ocean, April 21, 2021 (Photo by Chief Mass Communication Specialist Shannon Renfroe/U.S. Navy)

Fostering the Discussion on Securing the Seas.