Regulation of Unmanned Combat Aerial Vehicles (UCAVs) in Maritime Security Operations: Ensuring Compliance with International Law

Posted: May 31st, 2023

Regulation of Unmanned Combat Aerial Vehicles (UCAVs) in Maritime Security Operations: Ensuring Compliance with International Law

2. International Legal Framework for UCAVs in Maritime Security Operations
The regulation of UCAVs must necessarily take into account the existing body of international law, in that it embodies the rights and obligations of various actors, including the myriad of states involved. This body of law is firmly rooted in several thousand international treaties, as well as latter expressions of customary law, judicial decisions, judicioconsultive pronouncements, and general practice. State practice is particularly important to international customary law, in that this body of law may evolve and consolidate over time through what the International Court of Justice (ICJ) refers to as “general practice accepted as law.” The court recently asserted that “the general practice of states has been” important evidence” for the establishment of rules of customary law and has adopted a “two-tiered approach.” Ultimately, a comprehensive understanding of the status of a principle as customary law requires consideration not only of state practice, but also of the opinio juris.
The international legal regime relevant to unmanned combat aerial vehicles (UCAVs) in general, and their actual and potential roles performing military, law enforcement or any other functions in and around the territorial jurisdiction of states in particular, is complex in character and evolving in nature, and subject to constant (re)interpretation by states, international bodies, as well as other actors undertaking these different types of operations or participating at the international level. Several multilateral treaties between nations include annexes or articles that address some or all features of UCAVs in different contexts and degrees. Bilateral agreements concluded between nations manifest similar characteristics. Diplomatic discussions also take place within multinational settings to address particular activities, issues, or incidents within the spectrum of UCAVs as well as over investigative or compliance matters involving such capabilities.
2.1. Definition and Classification of UCAVs
Classification of UCAVs can be done based on the wing configuration. As stated above, UCAVs can either be classified as prop-driven, turbojet-driven, or turbofan-driven. There are different type designation schemes of different origin to build up a good classification, including ones developed by the U.S. Air Force and Navy. UCAVs are again divided into four different classes corresponding to their size (small, medium, large, and extra large) by a number of US Defense Agencies, including the U.S. Air Force (USAF) and Defense Advanced Research Projects Agency (DARPA). These classes are Small, which weighs less than 150 pounds, Medium, which weighs 150-600 pounds, Large, which weighs 600-2200 pounds, and Extra Large, which weighs 2200-11000 pounds.
UCAVs are defined as autonomous or semi-autonomous crewless aircraft capable of launching long-range guided missiles. They are intended to undertake different types of military operations. However, there have been suggestions to include jet-powered cruise missiles and ballistic missiles in the category of UCAV. Only the subsonic or supersonic unmanned aerial vehicles that can be equivalent to the missiles are generally considered as UCAVs. It is noteworthy that among the remotely piloted aircraft (RPA) systems, UCAVs are actually the only aircraft that can deliver weapons. Others are used for intelligence, surveillance, and reconnaissance (ISR), communication relay, or any other non-lethal mission types. The significance of UCAVs is also augmented as they anchor an uninterrupted continuum of operations commencing from ISR missions and extending to lethal air strikes.
2.2. Applicable International Law
A UCAV traveling across the world’s oceans in order to reach its area of deployment will naturally fly above various nations’ Exclusive Economic Zones (EEZs) and territorial waters on its path. A UCAV is also more likely to fly above the coastal waters of underdeveloped nations whose shoreline is fringed with uninhabited islands because its flight profile is less susceptible to identification or interception in that environment. Consequently, UCAVs will most likely interact with coast-states in the regions beyond 12 nautical miles from shore as they transit this passage to reach their mission area or return to base. Such activity requires the UCAV to operate lawfully throughout the entirety of a coast-state’s airspace to the limit of its territorial sea, outside which the principle of freedom of overflight may be legally invoked by the UCAV’s parent state or supporting states to assert a right of passage across the state’s sovereign space.
All unmanned combat aerial vehicles (UCAVs) are legally required to comply with three regimes of international law. International air law covers the rates of passage of aircraft through national airspace and above international waters, as stipulated by the 1944 Chicago Convention on International Civil Aviation. The law of armed conflict (LOAC), also known as the law of war, and by those states who are not signatories, as the Geneva Conventions, regulate the conduct of air warfare between states and govern the treatment of certain individuals by states which are either in a state of war or which are not involved in hostilities but are subject to occupation by a belligerent state. Such regimes regulate the operation of aircraft far from and over any coast or territorial waters.
2.3. Key International Conventions and Treaties
International law in recent years has had to deal with certain issues with the sea such as environmental management, piracy, and maritime terrorism, besides the more traditional questions of security, navigation rights, economic development, and dispute resolutions. The United Nations Convention on the Law of the Sea as of now is the most authoritative text upon which depend notions colorfully dealt with in the past through state practice, duly crafted international relationships, or regional commitments. It is not a surprise that one might have to obtain close to 400 multilateral treaties relating to the maritime field and ratified before 2016 to fully understand this part of international norms-generating effectiveness embodied in UNCLOS as domestic legal orders often rest on the conduct of foreign states.
A number of international law instruments have sought the regulation of how military operations are conducted in conflicts. These instruments primarily establish rules of warfare in the conduct of hostilities. The legal regimes that seek to regulate these instruments or human behavior in military operations can be classified into four categories. These are the Hague Conventions, Geneva Conventions, United Nations Charter, and general principles of international law. The four classes of instruments represent the core instruments of international law that make up the legal frameworks that seek to regulate the manufacture, trade, and use of all humans and inhumane weapons and their effect in human conflict around the globe.
2.4. Jurisdictional Challenges and Legal Gaps
The shortcomings of the coherent legal basis and practical arrangements, in large part due to the concerns of the International Civil Aviation Organization (ICAO) to ensure the free flow of civil aviation, have been at the bottom of numerous military-to-civil incidents in the enforcement of sanctions at sea and in the life-saving operations of irregular migrants and refugees in the central Mediterranean. Moreover, the present division of labour has lost much of its significance in the face of increasingly demanding national security and surveillance tasks from ever-resource constrained NATO member states. While UCAVs flying in support of Operation Unified Protector (OUP) were not challenged by airspace control authorities, the UAVs operating over the North and South Atlantic have repeatedly been intercepted by patrolling fighter aircraft. Coordination of UAV activities with host nation may be best handled by international arrangements. In the absence of any such agreements, accessing states, particularly maritime states flying UCAVs for both military and civilian uses in and through various foreign zones of control, must practice prerogatives of the high seas supported by the concept of Innocent Passage in territorial airspace.
Particular challenges arise when one considers applying existing rules to UCAVs in the context of modern maritime security operations. It is generally acknowledged that the coastal state has responsibility for the safety and security of the shared maritime space. As a result, maritime law enforcement is a sovereign prerogative of the coastal state, as an exercise of port and aviation security normally requires the deployment of various equipment and submission to appropriate checks, limiting the collective freedom of the state and the shipping industry. By implication, the coastal state has jurisdiction over upper airspace sur adjacent high seas and over the vessels and aircraft accessing their coasts. The latter type of jurisdiction extends out into the high (international) airspace and high seas under the doctrine of a tacit acceptance of safety and security given to the Emperor’s ships. The various articles of the Chicago Convention provide little guidance on the principles and arrangements for that authority.
3. Compliance Mechanisms and Challenges in Regulating UCAVs
The Naval History of Unmanned Combat Aerial Vehicles (UCAVs) has unique operational principles and ground characteristics that make regulating UCAVs difficult. UCAVs are unmanned aircraft with the ability to attack any airborne target, ground targets, and maritime targets based on a command and control link, usually with humans involved in decisions on sensor or weapon employment. UCAVs are able to autonomously carry out many complex missions against a broad array of target types. Because of their significant enhancements over previous UAVs, UCAVs (which can operate with or without a human-in-the-loop decision maker) raise unique operational and technological issues that complicate current efforts to resolve the procedural and substantive issues related to the autonomous operation of lethal unmanned systems. UCAVs are part of the UAV sub-category, and like UAVs, the international community has no specific treaty or instrument that purely regulates the development and usage of UCAVs. Nonetheless, current international regulatory instruments also bind UCAVs. This is so because most of the current legal regulations bind all autonomous systems capable of causing destruction, regardless of whether they are manned or unmanned.
Rapid technological development in the field of aviation has made surveillance and military operations complex, sophisticated, and responsive in nature. The recent technological advancements of armed Unmanned Aerial Vehicles (UAVs) and remarkable developmental feats from armed UAV developers in its sub-category, the Unmanned Combat Aerial Vehicles (UCAVs), make the regulation of UAVs and UCAVs essential. Unlike manned Combat Aerial Vehicles (CAVs), UCAVs have more freedom of action and are freely deployable and operable in any part of the globe, thanks to their fully automated operation and flexible modes of control. In fact, the increased usage of UCAVs is posited to significantly reduce the conventional full-scale military dependency on a huge manned aircraft fleet strategy. The recent extensive military operations by the United States and the United Kingdom in Pakistan through the employment of UCAVs have reignited international debates and controversy concerning the legality of UCAV strikes with respect to targeting, the law of armed conflicts, and self-defense.
3.1. National Regulatory Approaches
In December 2015, the International Telecommunication Union (ITU) declared the establishment of an international standard for UCAVs, mark radio frequency (RF) signals from UCAVs as a means to lower the risk of unauthorized use, establish system specifications and security requirements, and guarantee interference avoidance among UCAVs. The Federal Aviation Administration (FAA) in the US developed Performance Standards GS-0076 for UCAVs in December 2006. With this in mind, international civil regulators have the International Civil Aviation Organization (ICAO). ICAO started its own UCAV research with the main objective of delivering a framework for procedures and regulations to control UCAVs in civil aviation. France has proposed that a roadmap for UCAV to be implemented by 2022 at the ICAO in order to facilitate their integration into commercial and non-commercial flights.
Countries have started to introduce laws and regulations to manage the integration of UCAVs in their airspace. The laws and regulations provide for financing, data protection, certification, safety standards, categories of UAS, flight rules, insurance, inspection, sanctions, reporting, and security. While several countries have tailored laws to address the UCAV, others have proposals or considerations in place. France passed Law No. 2016-1428 on 7 October 2016 relating to ‘the modernization and enhancement of airport security appeal’ that provides for the establishment of more detailed regulations governing the deployment of UCAVs. The United States (US) was the first country to create laws for the management of civil aviation in 2012, asserting that the National Airspace System is safe, efficient, and environmentally responsible and coordinating UCAV integration in the aviation system.
3.2. Role of International Organizations
In compliance with the Call for Fairness in LETHAL-Autonomous Systems by the TG Market, another initiative that should also be of interest to CJ for the securities services rendered by M’s UCAVs, the “Joint Declaration” of future research projects on this segment was signed by several countries, under the UN honeypots. Also, apparently, the UNO is not indifferent to the worries created within the international community by the proliferation of UCAVs. In 2011, the UNSG issued a report, suggesting that a Group of Governmental Experts on the subject be created. Furthermore, in 2013, the Organization decided the elaboration of a GP for the next Kiavos 2-year transfer. As a result, to try to understand the positioning of the organizations against the manufacturing and the use of custodians and UCAVs, a questionnaire was sent to some of the main participants of the maritime legislative process in force.
Contributing towards compliance with and understanding of international law, the various proposals under debate at the United Nations must be taken into account. Over the years, the question emerged whether international regulation of UCAVs was required and the professional orientation of the issue came from the organizational aspect of Lake. In that particular view, in force the agreements examined, concentrating upon UNO as a root, this positioning was observed in systems or organizations that could contribute to international world stability by coordinating situations, standardizing measures and facilitating negotiations. Later, thought was directed to the CJ of the Armed UCAVs, since they could be aimed for military aims in conflict situations, especially in view of the different precedents of their use by some major military powers.
3.3. Coordination and Cooperation among States
In a world regulated by international law, coordination and cooperation among States is key to enforce compliance. When it comes to the use of drones in militarized policing activities, the core legal principle should be similar: clear guidelines need to be established with respect to how UCAVs operate in an international context in order to prevent potential global insecurity. Establishing such rules can be a lengthy process, as each player in the realm of international law practically has an equal say, but such process would provide some needed global leadership and perhaps curtail global superstar states who act in impunity, if not illegal, anti-piracy shows of force. Below are elements that should be explored in such international dialogue. Effective, secure, and non-abusive use of UCAVs in maritime security operations cannot happen without an increased level of international cooperation among stakeholders both at the bilateral as well as multilateral level.
While the benefits of UCAVs for maritime surveillance and anti-piracy have been discussed, the use of such military hardware in the policing of piracy and other maritime crimes raises concerns which have not been addressed in the literature. This paper therefore seeks to close the gap by articulating the potential issues associated with the use of UCAVs in maritime IAOs (Section 2) and exploring how compliance with international law can be ensured in the use of UCAVs for surveillance and policing activities at sea (Section 3). Although the use of UCAVs in protection of maritime security can raise concerns as development and deployment of drone technology have been very rapid, the development and deployment of UCAVs will, unlike in most other law enforcement scenarios, in the context of maritime security, be subject to a two-tier regulatory framework: UCAVs used in maritime IAOs will need to comply with both the general principles of public international law and specifically apply the laws of the seas to their operation. Compliance with both sets of law will require crosscutting regulatory activities involving multiple state and non-state actors.
3.4. Technological Advancements and Adaptation of Regulations
In addition to capabilities by the production of military equipment, the most important parameter determining entry in a battlefield of gear is decision-making dimensions necessary with capabilities of these lands. Mythology autocracies using all types of UCAVs invest heavily in intellectual choices. UCAVs undertaking participation in combat activities with their most important distinctions dissimilar to all conditions and components they can keep are not seen individually like missiles fired in a conflict area.
Moreover, actually new systems, different versions, and surprising us through information of capabilities, advanced systems have emulated all kinds of conventional aircraft in terms of “situations they are built to use”. The necessity for own unique arrangements has also updated substantially. Contrary to predator-based UCAVs, most of which are used in intelligence activities such as surveillance and intelligence, regular air warfare, combat-disabled air defense fighting, colonial wars, etc., depending on new capabilities enabled by added intellectual systems and new technologies, UCAVs have also commenced to be included in more complicated-intensive ascent during duties like dogfight. By being concealed under the notion, they have commenced to penetrate classical foreign “exit strategy dilemmas” like sustainability in this intensity.
The rapid development of advanced technology and intelligent systems in every field of today’s world is a sign telling about the struggle between time and need. For that reason, thanks to the rapid global growth of Unmanned Combat Aerial Vehicles (UCAVs), current requirements and determinant situations are quite inconvenient for countries trying to regulate and adapt the virtual military systems for international law. Due to an extremely fast production tempo which cannot be parallel by current regulations, the production level can be assumed as a kit of all UCAV’s problems on adaptation of them to main lines of contemporary regulations to Kondylis.
4. Ensuring Effective Implementation and Enforcement of UCAV Regulations
The agreement of a collective regional, if not international body that can act as a unified watchdog for the UCAV regulations may be demanded to ensure transparent and compliant conduct of the combat operations. The development and maintenance of a “black and white” list may also be considered. UCAV operators, when used in potential acts or support for acts that amount to the use of force, should also consider conforming to the guidelines attached to the registration and use of armed systems in a maritime context. Ensuring prior official notice to the flag state, and regional partners located within areas the UCAVs are allowed to operate notwithstanding, surveillance and reiteration to the operators that the attached legal, ethical, and humanitarian implications of their system’s operational use should always be considered, are key to ensuring effective and compliant use of UCAVs in a maritime environment.
Effective implementation of the regulation will require a sophisticated cooperation framework among states, as well as a rigorous monitoring and inspection implementation mechanism. UCAVs and the technology backing their operational capability are a resource-intensive system, and this alone is likely to limit their proliferation. In addition to this, well-established international customary norms provide enough legal basis to establish rules of engagement and conduct of combat operations in general and in a maritime context. The international regime governing aerial warfare in terms of targeting and use of weapons during armed conflict that is applicable to UCAV operators similarly can be invoked in a variety of counter-terrorism operational activities in a maritime setting. These norms, along with a current international climate, which greets any potential attempts by the states to resort to the use of force outside the realm of armed conflicts with a substantial degree of international scrutiny could be harnessed to enforce existing rules surrounding the use of UCAVs in a maritime environment.
4.1. Monitoring and Surveillance Mechanisms
On the development of an integrated and coordinated system for UAS operations in civil airspace: Civil aviation authorities should ensure that security requirements are in line with respect and respect of the rights of the state and the responsibilities of the state to implement the essential elements defined in the national legal regime and to recognize and respect the sovereignty and sovereignty rights of other states. States parties must respect the sovereignty and sovereignty rights of other states when using airspace for unmanned aircraft systems. In addition, civil aviation authorities must ensure that unmanned aircraft systems meet all requirements related to the safety and regularity of civil aviation. The states must also implement the necessary protocols to integrate UAS ground operators into the air transport system safely, including participation in states, in particular with respect to the Airport Traffic Control System (ATC). Unmanned aircraft systems must operate safely in complex air traffic and airport environments for civil aviation.
According to the Convention on International Civil Aviation (ICAO), each contracting state must set up monitoring and surveillance mechanisms to ensure the compliance of the operators of its chosen unmanned aircraft systems (UAS) that operate over the high seas with terms of international law and the rules and regulations concerning the protection of the environment, identification, and safety. Such monitoring and surveillance mechanisms can also be for search and rescue operations. It is a requirement that the state must be able to do this, have properly qualified personnel to conduct these monitoring operations and surveillance measurements, and must have the legal regime in place (which can vary from one state to another) to grant the state a sufficient level of authority and responsibility so that an effective management of the flights of UAS over the high seas is guaranteed.
4.2. Accountability and Liability Frameworks
At the national level, states are required to craft a framework that covers the operational, technical, privacy, human rights, etc. aspects of UCAV use in maritime security operations, supported by their existing legal and regulatory infrastructure. To ensure compliance with ICAO, as was previously discussed in the CONOPS, a declaration (with supporting documentation) is required by states that spells out their adherence to the legal obligations under the Convention. The development of an ethical framework was delegated to the Joint Ethical Group (JEG) formalized under the SWG to ensure that the framework governing the UCAV’s use in the CONOPS is ethical. Any violations of these approved norms supported by states (that can be understood as laws and regulations), and subsequently verified by the application of ethical constructs norms (as law and regulation), could be subjected to a return to the state at the ICAO VRSSIS of their actions for both legal and ethical issues. Then the offending state can be called upon to explain their actions under applicable APELL procedures. States could also call for action under Article 55 of the Chicago Convention where “Any state which is not a member of the Council may bring to the attention of the ICAO any matter affecting the regulation and operation of air navigation…”
The use of UCAVs at sea is formulated by states in conjunction with the legal, moral, and ethical obligations to ensure peaceful coexistence among nations. The SWG for the Proposed ICAO MAMI also took into consideration these essential principles when crafting the Concept of Operations (CONOPS) for the UCAVs. In Article 16, Human Element of the CONOPS, states are expected to ensure that the use of UCAVs in maritime security operations operates within a framework that ensures compliance with the applicable legal framework, including not only the CUSD as discussed previously, but also within the realm of national and international laws. As such, states are expected to propose specific courses of action to ensure that UCAVs adhere to these legal requirements and to demonstrate compliance within the ICAO framework. Similarly, the regulation of UCAV’s use at sea is also additionally regulated by guidelines and principles of international laws of the sea, all of which seek to ensure compliance with relevant international and national legal frameworks.
4.3. Training and Capacity Building Initiatives
These initiatives could take place not only through established training institutions, but also through the establishment and support for regional centers of excellence, regional UCAV test ranges, and tailor-made support to each country for establishing macro and micro UCAV doctrine, tactics, techniques, procedures, training, and infrastructure. These initiatives go beyond just providing UCAV hardware and base far more in the mold of Public-Private Partnerships (P3). Through providing such training and capacity building initiatives, technologically advanced UCAV users will be able to transfer technology to lesser developed countries as a way of ensuring that the latter adapt to and adopt UCAVs in an affordable manner. By providing and sharing lessons learned, naval and coastguard officers from these partner countries will acquire the necessary knowledge to synergize UCAVs with manned naval systems in support of the safety, security, and prosperity of the global maritime commons.
Even though UCAVs greatly enhance maritime security operations, it is highly unlikely that all states will have the technical and financial resources required to deploy UCAVs. In order to ensure that every maritime state has the capability to use UCAVs for maritime security operations, provisions for training and capacity building should form an integral part of the draft regulation. Doing this can be accomplished by, among other initiatives, improving the current “Train the Trainer” scheme used in some developing and least developed countries through multilateral, regional, and bilateral partnerships, enhancing the technical capability of their naval or coastguard officers to adopt and adapt UCAVs to suit their specific legal, operational, and financial needs. In addition to helping countries acquire UCAVs through partnerships with technologically advanced countries, training and capacity building initiatives will ensure compliance with the reach of the principles of the law of the sea contained in Article 87(1) of the United Nations Convention on the Law of the Sea (UNCLOS) where every state has “freedom of navigation and overflight.”
4.4. International Cooperation in Information Sharing and Intelligence
Moreover, no matter how advanced the UCAVs are or how large the investment effort is, they are not magic wands (or “silver bullets”) able to solve all the problems of maritime security. The results of civil and/or military protection actions will always be influenced to a very large extent by the understanding and support of the local population, as well as, by the engagement with other actors who live or transit through the area of interest. Therefore, investing in a true partnership with all internal and external actors involved in the problem would bring at least the same benefits and successes as the ones produced by UCAV operations. At the same time, pressing for complex systems, arbitrarily delivered and not actively supported by end-users detracts from the attention, resources, and, ultimately, from the achievement of perfection, of a more complex and effective regional security system. When establishing such a collaboration and sharing framework beneficial to all participants, standards such as STANAG 4717 could be used, which allows for interoperability in the acquisition, storage and sharing of UCAV-related information. Furthermore, the use of a standardization process during international missions could allow interested countries to have better access to intelligence provided by the party responsible for providing it.
An important requirement in modern maritime security operations is the sharing of information and intelligence on possible threats or security incidents. In the context of this examination, the sharing of information related to UCAV operations in the fight against non-state groups (including non-state groups portrayed as pirates, terrorists or insurgents) that operate in a specific maritime area is considered essential. Another possible scenario for the deployment of UCAVs in the maritime domain is the fight against drug smuggling at sea. The sharing of information will include information about the operations the country is carrying out, the authorization for the flight of unmanned vehicles in the respective airspace, the coordination with the relevant national institutions and the implementation of international agreements in the security field. The alignment of the resources devoted to the fight against non-state groups is part of a complex collaboration of the various components involved (military, civilian police, intelligence structures, border police that have assigned responsibilities in the fight against cross-border crime). It is also greatly facilitated by the use of coordinated actions carried out by drones (manned or unmanned).