Electric currents: programming legal status into autonomous unmanned maritime vehicles.

AuthorVallejo, Daniel A.G.

The use of autonomous vehicles in the ocean is a recent phenomenon, which challenges the notions of what can and cannot be done on the battlefield. One of these challenges is defining these vehicles in the proper legal framework, a challenge made harder by their lack of human control. This note seeks to establish a new definition for these autonomous maritime vehicles within the context of maritime law, establish a standard of liability for the vehicles, and provide guidance on whether or not these vehicles can comply with the collision regulations of the ocean.

CONTENTS I. INTRODUCTION II. BACKGROUND A. The History of Unmanned Maritime Vehicles B. The COLREGS and the International Maritime Organization III. DEFINING UMVS A. UMVs as "Vessels" and "Ships" B. UMVs as "Warships" C. UMVs as "Military Devices" IV. TORT LIABILITY OF UNMANNED MARITIME VEHICLES A. Establishing a Duty of Care B. Establishing Negligence C. Establishing Liability V. THE ISSUE OF NAVIGATION A. Navigation Requirements under the COLREGS 1. Part B: Steering and Sailing Rules 2. Part D: Sound and Light Signals B. Navigation of UMVs IV. CONCLUSION I. INTRODUCTION

In 2011, the United States Department of Defense's Office of Naval Research awarded Virginia Polytechnic Institute & State University a research grant for "understanding the jellyfish propulsion and feeding mechanisms to bioengineer autonomous vehicles. (2)" Two years later, the university's research team began testing the capabilities of a 170-pound, 5-foot-7 jellyfish robot named Cyro. (3) Perhaps the most impressive thing about Cyro is how life-like it is. The machine is not only designed to look like a real jellyfish, but Cyro also has nearly the same autonomous capabilities as a real jellyfish. Unlike previous models that were tethered, Cyro is designed to go months without any human intervention, powered only on a tiny hydride battery. (4) Once deployed, Cyro will be used to further develop our understanding of the ocean: it will study marine life, map the ocean floor, and monitor ocean currents. (5) However, its primary function will be maritime surveillance. (6)

Ten years ago, the idea of Cyro seemed like a fantasy out of an Asimov novel. (7) However, since the rise of "drone" unmanned aerial vehicles in the War on Terror, the United States has been looking to use other types of unmanned machines in different fronts of combat and defense. (8) The benefits of this new approach are less American military fatalities and more cost-effective ways for the military to monitor interested areas. As a result, the Navy started developing Unmanned Marine Vehicles (hereinafter UMVs), which included unmanned surface vehicles and unmanned underwater vehicles. (9) In 2007, the US Navy released The Unmanned Surface Vehicle Master Plan, detailing how the machines are to be developed, maintained, used, and defined in terms of operation. (10) Yet, the Plan does not define the legal status of the unmanned surface vehicles. The Navy has been vague on properly giving a legal definition to these types of vehicles, defining UMVs as "craft," a term which itself is undefined. (11) To make matters even murkier, the Navy has determined that UMV status is not dependent on the definitional "status of its launch platform." (12)

The difficulty with defining Unmanned Maritime Vehicles is critical in assessing their functions and privileges while operating in the ocean. Furthermore, even if autonomous UMVs fit into a legal framework, there is still the problem of determining whether they should fall within the authority of the International Regulations for Preventing Collisions at Sea (COLREGS) (13), and if so, how to properly ensure that they comply with those rules. Because UMVs will be operating in waters with manned craft, it is important to make sure they follow some set of navigation rules. The problem here is how to make them abide when they do not fit in the current definition of what a "vessel" is, as well as determining is UMVs should be given "vessel" status in the first place.

This Note seeks to put an end to this debate by arguing for autonomous UMVs to be defined as "military devices" and not as "vessels" or "ships." As such, autonomous UMV will not have to comply with the COLREGS as they are written. Instead, they should be held to a different standard of navigational rules due to their advanced technology and autonomy. This Note presents a unique and novel approach to giving Unmanned Marine Vehicles a new status as "military devices."

This Note begins in Part II by providing background information on the Navy's development of UMVs, as well as the COLREGS themselves. Next, Part III discusses the definitional problems facing legal classification, and argues that autonomous UMVs should not be classified as "vessels" or "ships." Defining UMVs as "vessels" or "ships" would be impossible the way the COLREGS are currently written. Further, amending the COLREGS would not be in the best interest of time because the military will most likely deploy UMVs before the regulations can be amended. Part IV then examines tort liability of UMVs: whether or not UMVs have a duty of care to other ships, establishing the standard of negligence of a UMV, and establishing liability in the case of an accident. Finally, Part V examines the way UMVs will navigate free of the COLREGS, and addresses safety concerns.

  1. BACKGROUND

    While the military's use of autonomous weaponry is nothing new, the high level of the autonomy seen in UMVs is the key factor in causing controversy on how to classify the vehicles. Not only does the history of UMVs have to be discussed, but also the history and purpose of the COLREGS. Understanding these two main elements will make the analysis on harmonizing the two a much easier task.

    1. The History of Unmanned Maritime Vehicles

      The US Navy's interest in UMVs has spiked in recent years; however, research in the capabilities of autonomous watercrafts has been ongoing for years. In 1993, the MIT Sea Grant College Program developed an autonomous surface craft called ARTEMIS, a small "scale replica of a fishing trawler." (14) This model proved to be too small to endure autonomy for longer periods of time, and subsequent models that came out of MIT were larger, such as a programmed kayak fitted with an acoustic tracking system used to follow tagged fish. (15) The early development of UMVs was mostly in an academic setting, created for oceanic research. It was during these years of academic research that the Navy took notice of these projects' potential.

      While the Navy's first focus of development was on the unmanned underwater vehicles, the publishing of its 2007 Master Plan focuses strictly on unmanned surface vehicles. (16) This is mostly because unmanned surface vehicles serve as a facilitator for operation of other unmanned vehicles: they can relay radio frequency transmission above to unmanned aerial vehicles and other aircraft, and below to unmanned underwater vehicles and other sea vessels. (17) The functionality of UMVs varies, but the Navy intends to use them for harbor and sea security, mine sweeping, sea exploration, and eventually to engage in combat and active defense. (18)

      Within the framework of UMVs exist varying levels of autonomous functionality, based on how "unmanned" different classes of UMVs actually are. The Navy has defined each level of autonomy as follows:

      * Manual- Man in loop continuously or near-continuously

      * Semi-Autonomous- some vehicle behaviors are completely autonomous (e.g., transit to station, activate sensors). Vehicle refers to its operator when directed by the operator or by its own awareness of the situation (e.g., for permission to fire).

      * Autonomous or Fully Autonomous- The vehicle governs its own decisions and makes its own decisions from launch to recovery point. (19)

      For the purposes of this Note, all UMVs referred to from here on out will be categorized under the third classification, "Autonomous or Fully Autonomous." Under the current language of the COLREGS and other applicable frameworks, such as the United Nations Convention on the Law of the Sea, the first two categories may be easier to classify than the third, as discussed in Section III of the note.

    2. The COLREGS and the International Maritime Organization

      The International Regulations for Preventing Collisions at Sea, informally known as The COLREGS, are a set of rules enacted in 1972 that apply "to all vessels upon the high seas and in all waters connected therewith navigable by seagoing vessels." (20) The COLREGS are made up of 38 rules divided into five different sections: general rules, steering and sailing, lights and shapes, sound and light signals, and exemptions. (21) The International Maritime Organization (IMO) contends that a particularly important aspect of the COLREGS was "the recognition given to traffic separation schemes" in Rule (10), which outlines ways to determine safe speed and collision risk, and outlines the conduct of vessels operating around traffic separation schemes. (22) In addition to the rules, there are Annexes providing technical details. (23)

      The COLREGS have been amended a number of times, most recently in 2007 when Annex IV regarding distress signals was rewritten. (24) The amending process is time consuming and complex. Simply put, proposed amendments must go through a "tacit acceptance" procedure, where amendments can enter into force between 18 to 24 months after proposal unless the amendment is objected to by a specific number of parties. (25) The COLREGS were amended in 1981 and 1987. (26) The COLREGS were ratified by the United States in 1977. (27)

  2. DEFINING UMVS

    UMVs are sea craft built to navigate the ocean and provide defense on maritime fronts. (28) The navigational regulations spelled out in the COLREGS are written to only apply to "vessels." (29) To say that there is an implicit connection here and that UMVs fall within the...

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