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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)

Territorial and Law of the Sea Disputes

China’s Reactions to the Arbitration Ruling Will Lead It Into Battles It Won’t Win, Part II

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Part I examined the military implications of China’s continued “military” actions versus Japan in the East China Sea or the United States and other countries in the South China Sea if China were to establish an ADIZ. Part II examines whether China has real economic or trade leverage to force other countries, including the United States, to support its point of view regarding the ruling. Part II also analyzes the related question of whether there are costs to China from continuing to ignore the legal ruling and ways in which China can be legally compelled to comply.

By Mark E. Rosen 

Embargoes and Sanctions

Shortly after the Tribunal ruling, China’s Deputy Minister of Trade was careful to encourage Chinese citizens to not boycott the U.S. and the Philippines; however, that does not mean that sanctions and boycotts are off the table. Bloomberg reported on August 4th that China will likely resume trade retaliation tactics against South Korea for its decision to deploy U.S. THAAD missiles to counter North Korean missile launches. Korea’s International Trade Association has identified 26 measures currently in place to restrict trade and is expecting more non-tariff barriers such as bogus safety inspections of inbound products, establishment of new licensing requirements, and manipulation of quarantine and safety inspections to frustrate Korean imports.   

The above actions are not unprecedented. In 2000, China banned all imports of South Korean mobile phones and polyethylene in retaliation for Seoul’s increase of duties on Chinese Garlic. In 2010, Chinese Customs Officials halted the shipments of rare earth minerals destined for Japan (for user in hybrid cars, wind turbines and guided missiles) as a form of protest for detention of a Chinese fisherman fishing near the Senkakus. The United States has also been victimized by China’s extensive unfair trade practices (dumping and illegal subsidies), theft of intellectual property, and hacking of U.S. companies. Working within the WTO system, the U.S. has filed a record number of suits versus China in the WTO on behalf of U.S. poultry producers and is now considering the unilateral institution of a total ban on Chinese steel imports because of illegal price fixing and other illegal actions by Chinese steel producers.  

The use of non-tariff barriers has been a favorite ploy by countries to sneakily frustrate imports to protect local producers while at the same time staying compliant with WTO rules. As for embargoes, WTO (Art 21) recognizes that states can impose measured national security, health, and welfare controls on both exports and imports to protect their citizens’ “essential security interests” or to prevent the proliferation of weapons. Using this exception, China passed a new national security law in 2015 which required foreign technology companies to be “secure and controllable” by Chinese National Security Agencies as a way of pushing out foreign technology firms like Microsoft, Apple, and Cisco in favor of local suppliers. However, there are limits to this type of activity, as witnessed in the 1998 Shrimp Turtle Decision in which a WTO Panel found that a U.S. ban on shrimp from India, Malaysia, Thailand and Pakistan (because those states shrimp fishermen had allegedly killed Sea Turtles) was illegal because controls can only be used to immediately protect one’s own citizens from harm. Controls cannot be used to “send signals” or indirectly pressure an exporting state to reform.

In the short term, China has considerable legal room to maneuver should it wish to impose national security controls or erect non-tariff barriers to punish Japan, the United States, the Philippines, and others for opposing them in maritime disputes. WTO cases are very time consuming to document and litigate. However, that same legal maneuver space can also be exploited by the United States and others to frustrate Chinese imports. Therefore, China should do the math and assess whether they have more to gain or lose by instituting de facto embargoes.  

In 2015, China amassed a $365 billion merchandise trade surplus with the United States. Chinese businesses have put this cash to good use by investing in new plants and equipment, educating its young people abroad, and investing billions in the U.S. and other safe offshore markets. This is not unique to the U.S.; China has a global trade surplus of $600 billion.  It continues to have small trade deficits with Japan and South Korea and its principal imports are electrical and industrial machinery (no. 1 and 3), oil (no. 2), and ores (no. 4). This cursory analysis of China’s economy overwhelmingly demonstrates that China is highly dependent on international trade to fuel its economy. China’s offshore investments of its U.S. trade surplus helps China  diversity its holdings outside of Asia. China is also heavily reliant on international suppliers for the raw materials it lacks and risks a great deal by starting a trade war in which it is deprived access to the U.S. and other foreign markets.

History confirms that China would likely suffer more than the U.S. or Japan, Australia, and the Philippines as a result of an embargo. Tough Allied embargoes against Nazi Germany and Italy proved ineffective when self-interest among allied business interests caused the embargoes to leak or, in the case of Germany, forced innovation when Germany developed synthetic substitutes for oil and other commodities. When the U.S. embargoed wheat exports to the USSR in 1973, Canada and Australia picked up the business. The latter is especially important in the current situation. If China were to stop buying Australian ore or Japanese finished products, the world economy is sufficiently diverse to compensate for some of these losses. After the U.S. embargoed exports of scrap iron, steel, and oil to Japan and froze Japan’s assets, Japan was put into the position of having to choose between fighting for additional raw materials or abandoning their plans for a “New Order” in Asia. It is unlikely that any country would launch a Pearl Harbor attack if China were to embargo their products; however, embargoes have a high potential for “blowback” and could result in unintended consequences to the PRC’s overseas businesses, mines, and industrial operations.      

It is also fiction that the U.S. is vulnerable to Chinese action because of its stake in the U.S. public debt (20% foreign owned). In reality, China buys U.S. sovereign debt because it is safe, liquid and can be used by China to finance dollar denominated international transactions (such as oil). China’s central bank also buys U.S. sovereign debt to maintain the exchange rates for renminbi and help drive down the costs of Chinese exports. Also, U.S. sovereign debt is overwhelmingly held by U.S. domestic entities (66%); such that were China to dump its nearly $1 trillion in U.S. debt, that debt will simply be purchased by domestic and foreign purchasers – as happened in August 2015 when China reduced its U.S. debt holdings by $180 billion.  For China, the impact of “a broad scale dump of U.S Treasuries…would be that China would actually export fewer goods to the United States.”  

Sanctions and embargos tend to “leak” because the global market will almost always produce another supplier or purchaser of something that is being withheld from the international market. Philippine bananas and mangos also taste good in Tokyo, Paris, and New York. Given China’s extreme dependence on international trade to fuel its domestic growth and overseas investment, it would be almost suicidal for China to engage in actions that might restrict its access to foreign markets. Likewise, a government-lead boycott of foreign products would, apart from the legal repercussions, would have extremely destructive impacts on its economy since it still relies heavily on imports of agricultural products, industrial equipment (from mostly Japan and Korea), and metal ores for  manufacturing applications. Finally, dumping U.S. debt might cause some angst but, in the long run, U.S. debt instruments would be purchased by investors in the U.S. and other countries.

Continued Trashing of the Tribunal Decision and International Law in General

China continues to condemn the Tribunal ruling. The traditional attacks focused on questions of lack of jurisdiction and “overstepping” its legal mandate. Another Chinese daily’s reported that the Tribunal was a “front” for the United States and “lackey” of outside forces and had an inherent bias because the Philippines paid the “court costs” for the proceeding. A few speculated that China might withdraw from UNCLOS, but China will more likely establish its own arbitral panel to adjudicate the territorial disputes outside of UNCLOS. This later course of action has precedent; recall China’s 2015 establishment of an Asian Infrastructure Bank to finance Asian infrastructure projects outside of the regulation-burdened World Bank system.   

China seems to labor under the perception that the Tribunal Ruling is purely a regional matter and that its impacts end with the states bordering the SCS. China continues to ignore that many countries take the ruling very seriously because the SCS is a maritime superhighway between the Middle East, South Asia, East Africa, North Asia, and Australia. Roughly 60 percent of South Korea’s energy supplies, nearly 60 percent of Japan’s and Taiwan’s energy supplies, and 80 percent of China’s crude oil imports come through the South China Sea. According to a 2015 report from the Council of Foreign Relations:

“Each year, $5.3 trillion of trade passes through the South China Sea; U.S. trade accounts for $1.2 trillion of this total. Should a crisis occur, the diversion of cargo ships to other routes would harm regional economies as a result of an increase in insurance rates and longer transits.”

Money talks. For this reason, states that would ordinarily have been silent registered their support for the Tribunal decision. The EU issued a statement on July 15, underscoring their support for a rules-based order and respect for UNCLOS. The G-7 called on states to “fully implement decisions binding on them in … tribunals under the Convention.” Canada, France, Germany, the UK, Japan, Vietnam, Singapore and the U.S. issued statements support of the ruling. Indonesia, India, South Korea issued more “measured” statements urging China to show restraint and respect for UNCLOS.  

There were some dissenters, but much of the industrial world supported the outcome and expects China to comply. If China continues to signal that it has no interest in conforming to the ruling, China could be excluded from important international negotiations, including, for example, the upcoming negotiation of an agreement under UNCLOS that deals with biodiversity beyond national EEZs. As I suggested in After The South China Sea Arbitration, China could have its privileges essentially suspended in three UNCLOS institutions: (1) the International Tribunal for the Law of the Sea (ITLOS); (2) the International Seabed Authority (ISA), and the (3) the Commissions on the Limits of the Continental Shelf (CLCS).

If China continues its island-building activities and interferes with Philippine fishing in the vicinity of Second Thomas Shoal, Scarborough Shoal, and Mischief Reef, an international court such as the International Court of Justice (ICJ) or ITLOS, could be asked to impose sanctions on the China for flaunting a lawful UNCLOS decision. The case would be predicated on the notion that China cannot take advantage of the benefits of UNCLOS if it lives outside of the law. In practical terms, an injunction could be sought which: recalls China’s judge on ITLOS; blocks the CLCS from any further proceedings involving the Continental Shelf entitlements of China; and lastly suspends both China’s ability to file further deep-seabed mining applications before the ISA and enjoin any further prospecting of its sites in the Indian Ocean. It might also be appropriate for a Tribunal to suspend China’s participation in UNCLOS related bodies including the International Seabed Authority (ISBA) (which writes the regulations for deep seabed mining), the International Hydrographic Organization (IHO) (the charting and oceanography body) and the International Maritime Organization (IMO). The latter action would be especially harmful for China given that the IMO has broad responsibilities to write the rules for merchant ship design, construction, operations, and navigational routes/practices while China has one of the largest merchant marine fleets in the world. 

A meeting of the International Maritime Organization IMO Photo
A meeting of the International Maritime Organization (IMO Photo)

These legal maneuvers would be slow to orchestrate but, like other types of sanctions, could be far-reaching and difficult to reverse once they are put in place. However, China’s continued island reclamation after the ruling, their recent military actions in the vicinity of Scarborough Shoal, and the Chinese Supreme Court’s reaffirmation of the 2012 fishing ban are in direct contravention of the Tribunal’s decision. Since the effects of China’s actions have impacts beyond the Philippines, almost any bordering state,  international organization, or possibly  NGO would have standing to seek to have the Tribunal’s decision enforced since the ICJ (and for that matter ITLOS) has “inherent jurisdiction…to ensure that its exercise of jurisdiction is not frustrated and that its basic judicial functions are safeguarded.”

Conclusion

Inexorably, China is painting itself into a corner in which its escape options become more limited. While it was hoped by officials in the U.S. and elsewhere that China would eventually come to the realization that it needed to capitalize on the favorable aspects of the ruling and “pivot” on those it did not like, that is not happening. The recent military displays in the ECS and SCS, the threatened sanctions towards South Korea, and continued “trashing” of the Tribunal ruling suggest that China is opting for confrontation versus conciliation and now runs the risk of becoming involved in a major military conflict with Japan and perhaps the United States. China says that it is committed to a rules-based order and leadership in Asia but its recent actions say otherwise. Lastly, and perhaps most importantly, pursuit of high risk strategies which could place China’s international trading relations at risk is antithetical to the Chinese Community Party’s 13th Five Year Plan for 2016-2020 to promote balanced international trade, inbound investment, and free trade zones.   

It is entirely possible that China’s leadership does not fully appreciate the dangerous choices their countrymen are making and how their actions are being perceived on the world stage. Military-to-military encounters at sea are occurring on a daily basis, and the potential for a costly misstep increases with each passing day. So too, a miscalculation in the trade or economic arena would likely backfire since China is a trading nation and it can ill afford to have its products excluded from foreign markets. High-level diplomacy and cool heads should be the order of the day.  

A maritime and international lawyer, Mark E. Rosen is the SVP and General Counsel of CNA and holds an adjunct faculty appointment at George Washington School of Law.   The views expressed in this paper are those of the author alone and do not represent the views of CNA or any of its sponsors.   

Featured Image: Triple-E class container ship “Madison Maersk” of Maersk Line loaded with containers is berthed at Nansha port in Guangzhou. (Reuters)

Capability Analysis, Territorial and Law of the Sea Disputes

Military Activities on the Continental Shelf

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This piece was originally published by the Lawfare Institute in Cooperation with Brookings and is republished with permission. Read it in its original form here.

By James Kraska

The recent Philippine-China Arbitration Award determined that China’s construction of artificial islands, installations and structures on Mischief Reef, Subi Reef, and Hughes Reef were unlawful interference with the Philippines’ exclusive sovereign rights and jurisdiction over the seabed of the exclusive economic zone (EEZ) and continental shelf. Since the three features are low-tide elevations (LTEs), rather than islands, they are incapable of appropriation and are merely features of the Philippine continental shelf, albeit occasionally above water at high tide in their natural state. Although the tribunal’s legal judgment with regard to China’s activities was correct, its reasoning was a bit too categorical. This article adds further fidelity to the tribunal’s determination by distinguishing between lawful foreign military activities on a coastal state’s continental shelf, and unlawful foreign activities on the continental shelf that affect the coastal states sovereign rights and jurisdiction over its resources – a distinction that evaded the tribunal’s analysis.

It is important to understand the lawful scope of foreign military activity on the seabed of a coastal state’s EEZ or continental shelf, as the issue is likely to recur. The Defense Advanced Research Projects Agency, for example, is exploring the idea of “upward falling payloads,” or pre-positioned containers or packages that lie on the ocean floor and wait until activated, at which time they “fall upward” into the water column to perform undersea missions, such as powering other unmanned systems. With some narrow exceptions, such as emplacement of seabed nuclear weapons or seabed mining, the use of the deep seabed is a high seas freedom enjoyed by all States. The more compelling question, however, is the extent foreign states may emplace naval devices or construct installations or structures on the continental shelf or within the EEZ of a coastal State for military purposes.

Article 56(1)(a) of UNCLOS provides that coastal States have certain “sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or non-living….” in the EEZ. Coastal States also have “jurisdiction as provided for in the relevant provisions [of UNCLOS] with regard to “(i) the establishment and use of artificial islands, installations, and structures.” Under Article 60, coastal States enjoy the “exclusive right” to authorize or regulate the construction of structures, a rule that is extended to the continental shelf by virtue of Article 80. Coastal State jurisdiction over artificial islands and structures is not all encompassing, however, and is limited to jurisdiction “as provided for in the relevant provisions [of UNCLOS].” The relevant provisions of the EEZ, of course, relate principally to exclusive coastal State sovereign rights and jurisdiction over living and non-living resources in the EEZ and on the continental shelf, and not sovereignty over the airspace, water column, or the seabed.

In the recent Philippine-China Arbitration Award, the tribunal determined that China’s artificial island construction on Mischief Reef was an unlawful violation of Philippine sovereign rights and jurisdiction over its continental shelf. Since Mischief Reef is a LTE and not a natural island, it constituted part of the Philippine continental shelf and seabed of the EEZ. China failed to seek and receive Philippine authorization for its artificial island construction, and therefore violated Articles 56(1)(b)(i), 60(1), and 80 of UNCLOS (Arbitration Award, para. 1016).

Foreign States, however, are not forbidden to construct installations and structures on a coastal State’s continental shelf per se. Only those installations and structures that are “for the [economic] purposes provided for in article 56” or that “interfere with the exercise of the rights of the coastal State” over its resources require coastal State consent. (See Article 60(1)(b) and (c)). 

But even if China converts its installations and structures into military platforms, their size and scope are so immense that they dramatically affect the quantity and quality of the living and non-living resources over which the Philippines has sovereign rights and jurisdiction. Although normally installations and structures that are built pursuant to military activities are not subject to coastal state consent, the industrial scale of Chinese activity lacks “due regard” for the rights and duties of the Philippines and its sovereign rights and jurisdiction over resources under Article 56 of UNCLOS.

If China had merely emplaced a small, unobtrusive military installation or structure on the seabed or landed an unmanned aerial vehicle at Mischief Reef as part of occasional military activities, it would not have been afoul of UNCLOS. Such incidental use of the seabed or an LTE (which is part of the seabed) are within the scope of permissible military activity in the same way as emplacement on the continental shelf of a small seabed military device. Foreign States may use the seabed for military installations and structures, and even artificial islands, as these purposes do not relate to exploring, exploiting, managing and conserving the natural resources. Only those military activities that rise to the level of or of sufficient are of such scale that they do not have “due regard” for the coastal state’s rights to living and non-living resources of the EEZ and continental shelf are impermissible.

The distinction is important because creation of the EEZ and recognition of coastal state sovereign rights and jurisdiction over the continental shelf was never envisioned to limit normal military activities. Current and future naval programs, in fact, may utilize a foreign coastal State’s seabed EEZ and continental shelf in a manner that is completely in accord with UNCLOS.

Where do we draw the line, however, between an insignificant presence and negligible interference that is lawful, and large-scale disruption that is unlawful? Like all legal doctrine, what constitutes genuine interference to coastal State sovereign rights and jurisdiction must be reasonable, i.e. not de minimis or trivial, but rather a substantial and apparent effect on the resources in the zone, as I discussed in Maritime Power and Law of the Sea. Emplacement of military devices or construction of military installations or structures in the EEZ and on the continental shelf of a coastal State must be judged by reasonableness, and not be of such scale or cross a threshold of effect that it interferes in a tangible or meaningful way with the coastal State’s resource rights.

China’s operation of military aircraft from a LTE is not a priori unlawful, any more than operation of military aircraft from a warship in the EEZ would be illegal. The reason that PLA Air Force military aircraft flights from the runway at Mischief Reef are objectionable and a violation of the Philippines’ coastal State rights is the magnitude of the activity and its effect on the living and non-living resources. Operation by a foreign warship of a small aerial vehicle that lands temporarily on an LTE, for example, would not be unlawful. Likewise, if a naval force emplaced a military payload inside a container and placed it on the seabed of the EEZ – that is, on the coastal State’s continental shelf – that would also be a lawful military activity.

James Kraska is Howard S. Levie Professor of International Law at the Stockton Center for the Study of International Law, U.S. Naval War College, Distinguished Fellow at the Law of the Sea Institute, University of California at Berkeley School of Law, and Senior Fellow, Center for Oceans Law and Policy, University of Virginia School of Law.

Featured Image: MARCH 10, 2016- Philippine Naval Ship, BRP Sierra Madre, sails near disputed Spratly Islands in the South China Sea (REUTERS/Erik De Castro)