Identifikasi Masalah:

1. Bagaimana pengaruh rezim riset kelautan dalam hukum laut internasional perihal
penentuan status hukum AUV?
2. Bagaimana hukum laut internasional mengatur aktifitas riset kelautan yang dilakukan
oleh AUV di setiap zona maritim?

 State practices:
1. December 2016, Chinese forces captured a US AUV in the South China Sea.1
2. December 2017, Yemeni rebels captured another US AUV off the coast of Yemen
Houthi forces have captured a US Navy research UUV off the coast of Yemen.
The UUV, was a passive system being operated by the Navy as part of a
meteorological study, a US defense official told. The video claimed the craft was
operated by the Saudi coalition, which has been fighting the Houthi Yemeni
separatist group since 2015. The US Navy officials would neither confirm
whether the REMUS 600 belonged to the service nor provide details about any
UUV missions in the region when asked. “It is intended to operate in shallow
waters, intended to operate in littoral spaces, and is designed to be pretty
autonomous.” Typically, the most common Navy uses for a REMUS 600 are mine
countermeasures and intelligence, surveillance, reconnaissance and target
acquisition. Typical uses include studying underwater environmental conditions,
meteorological research, and underwater mapping of terrain and currents.
Typically, it only requires a patrol boat to put REMUS 600 in the water.2

 Art 17 UNCLOS states only that “ships” enjoy the right of innocent passage, but the
Convention does not define the term “ship”.
 ICJ in Nicaragua and Qatar v. Bahrain held only that “vessels” enjoy the right of
innocent passage, without defining the term “vessel”.3
 NOT A SHIP OR VESSEL: AUV is not a “ship” (or “vessel”) so it does not enjoy the
right of innocent passage. Applying the principle of contemporaneity (terms in a treaty
should be interpreted in light of the time at which it was concluded), the word “ship”
could not have been intended to refer to AUVs because AUVs did not exist when
UNCLOS was concluded. In any case, UNCLOS employs other phrases that could refer

1
https://news.usni.org/2016/12/18/china-promises-return-snatched-unmanned-navy-glider
2
https://news.usni.org/2018/01/03/houthi-rebels-find-likely-u-s-navy-unmanned-underwater-vehicle
3
ICJ, Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States), Merits, Judgment (27 June
1986), 1986 ICJ Rep. 14, ¶ 186; ICJ, Maritime Delimitation and Territorial Questions Between Qatar and Bahrain (Qatar v.
Bahrain), Merits, Judgment (16 March 2001), 2001 ICJ Rep. 40, ¶ 223.
 to AUVs, such as “underwater vehicles” in Article 20. In the alternative, the Egart is a
“warship”, so it does not enjoy the right of innocent passage under customary law.
 SHIP OR VESSEL: AUV is a “ship” (or “vessel”) so it enjoys the right of innocent
passage. Applying the principle of evolutionary interpretation (terms in a treaty should
be interpreted in a manner allowing certain terms to evolve over time), the word “ship”
was intended to be an evolving term given the lack of a definition, and it makes sense to
apply the rules of innocent passage to AUVs. In any case, the Egart is not a “warship”, so
any argument based on the inapplicability of the right of innocent passage to warships is
irrelevant.
 Recognition AUV will be a part of a future fleet: US, China, Russia
 Difference between ship and vessel?
 Although UNCLOS does not contain a definition of “ship”, are there other treaties that
contain such a definition? Should we consider those other definitions? If so, how does
this fall into the framework of treaty interpretation under Article 31 of the VCLT?
 Internal waters, territorial sea, contiguous zone, exclusive economic zone, high seas

LEGAL ISSUES

 Are such watercraft “vessels” under the peacetime law of the sea, 4 as reflected in the
UNCLOS or merely “objects” or “devices” (the threshold “status” question)? (see Legal
Status)
 Must they have a flag state? (see Nationality)
 Are AUV subject to the same registration requirements as manned vessels?
 What evidence of nationality must they carry and display?
 What navigation rights do they have on the high seas and in coastal State waters? (see
Navigation Rights)
 Do government-owned UMV have sovereign immunity?
 Would an attack on a military UMV rise to the level of a casus belli or justify nonforcible
countermeasures?
 Who will bear liability if a UMV is involved in a marine casualty or pollution incident?5

PRACTICAL CONSEQUENCES OF UMV STATUS

 UMV technologies are already here and therefore must be accommodated.

 The practical consequences of UMV status are of particular concern to maritime security
professionals. The maritime law enforcement community sees UMV (and their aerial
counterparts) as both an asset that can be harnessed to enhance their mission
performance, and a threat vector that is increasingly being exploited by criminal
organizations to avoid detection.

4
Under UNCLOS, the terms “ships” and “vessel” are synonymous. See UN Division for Ocean Affairs and the Law
of the Sea, Navigation on the High Seas: Legislative History of Part VII, Section 1 (Articles 87, 89, 90-94, 96-98) of
the UN Convention on the Law of the Sea, at 80, UN Sales No. E.89.V2 (1989).
5
Within the IMO, liability questions raised in the MASS review have been referred to the IMO' s Legal Committee.
  Thus a naval commander might be wondering whether a particular military UMV can
navigate in an international strait in transit passage or archipelagic waters in an
archipelagic sea lane passage, and if so what its obligations under the applicable collision
avoidance regulations.
 By contrast, a US Coast Guard patrol boat commander might be asking whether a UMV
suspected of smuggling contraband is a “vessel”, and if so whether it can be boarded on
the high seas only if a right of visit is legally justified or the UMV’s flag state consents
 Analysis must be based on established principles of treaty interpretation and when
appropriate, assessment of customary law rules.
 The “is it a vessel?” question raises issues of fact, policy, and law.

ARGUMENTS FOR LEGAL STATUS:

 One author suggested that UMV should be categorically deemed military “devices”
rather than “vessels”, and therefore exempted from the COLREGS. 6 The author argues
that no naval UMV can satisfy the “transportation” element necessary for vessel status.
See also: Introduction to the law of military “devices”  James Kraska, “Oceanographic
and Naval Deployments of Expendable Marine Instruments under US and International
Law”, 26 Ocean Dev.. & Intl. L. 311 (1995).
 Another author argues that all UUV be categorically treated as “vessels governed by the
full range of domestic and international laws of the sea”.7
 The formal approach to classification of a UMV under international law calls for
application of the two-step inquiry set out by the ICH in the 1951 Anglo-Norwegian
Fisheries case.

ARGUMENTS FOR NAVIGATION RIGHTS

 There is no definition of ‘navigation’ given in any of the Conventions on the law of the
sea, nor in any other treaty which might be referred to by way of analogy. One might
therefore refer to the ordinary dictionary usage … in other words, by the term
‘navigation’ we refer to marine transportation and the use of ships and vessels. The scope
of “navigation” rights is critical to the application of the compulsory dispute settlement
limitations in UNCLOS Art 297(1).

ARGUMENTS FOR NATIONALITY

 Boczek explained the purpose behind the requirement for registration to establish
nationality. The rationale of the institution of nationality of ships is that ships on the high
seas, which are not within the exclusive jurisdiction of any particular state, must be under
some control in order that order and safety of navigation be secured.8

6
Daniel Vallejo, “Electric Currents: Programming Legal Status into Autonomous Unmanned Vehicles, 47 Case
Western Reserve J. Int’l L. 405 (2015).
7
Andrew H. Henderson, “Murky Waters: The Legal Status of Unmanned Undersea Vehicles” 55 Nav. L. Rev.
(2001), at 55.
8
Boleslaw Adam Boczek, “Flags of Convenience: An International Legal Study 259 (1962).
  Boczek then goes on to flesh out the effective jurisdiction and control requirement.
Warships and other government vessels employed exclusively in noncommercial
activities are not required to be registered. They gain their nationality by actual use, but
they must bear external markings distinguishing such ships of their nationality. See
UNCLOS Art 29.

DEFINITION - TERMINOLOGY

 The “autonomous unmanned vehicle” category includes both semi-autonomous and fully
autonomous vehicles.
 The Navy defines a UUV as a “self-propelled submersible whose operations is either
fully autonomous (pre-programmed or operated under real-time adaptive mission control)
or under minimal supervisory control and is untethered except, possibly, for data links
such as a fiber optic cable.”9

TAXONOMY – CLASSIFICATION
 Although not determinative of its classification, a watercraft’s current mode of operation
and activity may be relevant to any determination of its navigation rights.
 In the US, the UMV focus has been on the watercraft’s capability, not the mode of
current operation,
 The Navy master plans distinguish among three levels of UMV autonomy:
1. Manual control (human in the loop continuously or near continuously)
2. Semi-autonomous (some operations executed completely autonomously and some
initiated or controlled by an operator);
3. Autonomous or fully autonomous (the vehicle governs and makes its own
decisions throughout)
 IMO’S MASS (Maritime Autonomous Surface Ships) Correspondence Group describes
four levels of unmanned surface ship autonomy:10
1. Ships with automated processes and decision support (but with seafarers aboard to
operate and control some shipboard systems and functions)
2. Ships remotely controlled with seafarers on board)
3. Ships remotely controlled without seafarers on board;
4. Fully autonomous ships.

MISSION
 Naval UUV missions include oceanography, inspection and identification,
communications/ navigation network nodes, information operations, intelligence,
surveillance, and reconnaissance, mine countermeasures, ASW, and payload delivery.

9
Navy UUV Master Plan
10
UK Industry Maritime Autonomous Surface Ships (MASS) Code of Practice https://www.maritimeuk.org/media-
centre/publications/being-responsible-industry-industry-code-practice/ , Table 2.1.
BAGAIMANA HI MENGATUR AKTIFITAS AUV  MARINE DATA COLLECTION
 AUV’s normal operation is to scan its surrounding in order for it to navigate freely
 However, several UNCLOS provision, i.e. innocent passage, MSR, will then
contradict to the “normal operation” of the AUV. For example: AUV stranded to
the coast collecting data of its surrounding will then immediately be suspected to spy
the coastal State, while the AUV may not be intended to “spy”.
 Current requirements to conduct lawful innocent passage  MSR is not innocent.
 Normal operation of AUV
 Marine data collection


TO SAY THE LEAST, AUV IS “UNDERWATER VEHICLE” WHICH IS ENTITLED

TO EXERCISE NAVIGATIONAL RIGHTS.

PENTING!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
https://www.fmprc.gov.cn/mfa_eng/xwfw_665399/s2510_665401/2511_665403/t1425479.sht
ml
statement PRC concerning Bowditch