1. Introduction
The International Research Ship Operators'
Meeting (ISOM) in 1995 received a short presentation on the perceived
future problems on the deployment of active oceanographic data
acquisition systems (AODAS) from research ships at sea. ISOM
requested that an ad hoc Working Group be set up to investigate
"the legal responsibilities and liabilities for the deployment
of Autonomous Underwater Vehicles (AUV) in the seas.".
The Working Group met on 1 October 1996
at the Southampton Oceanography Centre, with the following invitees/attendees:
Dr Charles Fay Superintendent, NERC Research Vessel Services (Chairman)
Professor Dennis Nixon University of Rhode Island, Marine Legal Advisor to UNOLS
Professor Nick Gaskell Institute of Maritime Law, University of Southampton
(Professor Ed D Brown Cardiff University, Author Autosub Liabilities Review)
(Professor Dr A H A Soons University of Utrecht, Maritime Law Specialist)
Mr Christopher Adams Head, RVS Operations, Diplomatic Clearance Specialist
Mr Cok van Bergen Henegouw Secretary, ISOM, Netherlands Institute for Sea Research
Commander Roland Rodgers Royal Navy, DRA
Mr Nick Millard Ocean Technology Division, Autosub Specialist
(Dr Marco Weydert European Commission,
Brussels)
() indicates Professors Brown and Soons
and Dr Weydert were unable to attend subsequent to their invitation.
In addition, the meeting was attended by:
Dr Don Heinrichs National Science Foundation, USA
Professor Richard Shaw Institute of
Maritime Law, University of Southampton
The brief of the Working Group was:
2. Discussion
i) CF introduced the discussion by reviewing
the work which the Institute of Oceanographic Sciences did, and
now the SOC Ocean Technology Division is doing, on the development
of DOLPHIN (Deep Ocean Long Path Hydrographic Instrument) and
DOGGIE (Deep Ocean Geological and Geophysical Instrumented Equipment),
now generically called AutoSub©. The group had the opportunity
of viewing AutoSub 1 at SOC, and a short video clip of its operation
at sea.
ii) As part of the development, Professor
Brown of Cardiff University prepared a review in 1989: "Operational
Constraints for Autonomous Submersible Vehicles - Report on Law,
State Practice and Procedure". In this, the issue of the
liabilities of deploying AODAS and ODAS in the Seas were reviewed.
iii) The potential operational problems
for deploying Auto Subs seem to be twofold:
a) liability for causing accidental
damage and pollution either directly or indirectly in the seas.
It could be considered that a rogue Auto Sub might collide with
another vessel, or cause it to collide with some third party/object
and as a result cause an oil/chemical/radionuclide spill. This
might occur if the actual "survey programme" of the
Auto sub did not match the programmed pattern through some control
fault. Or it might occur if another vessel inadvertently coincided
with the Auto Sub correctly carrying out its survey pattern;
b) contravening diplomatic arrangements
for the deployment of scientific instruments in waters of another
coastal state, either by accident of malfunction of the Auto Sub
control system, or through ignorance (or deliberately taking a
chance).
iv) NM and DH advised the group that
there were many (undefined) military AUVs under development and
about 12 civilian AUVs. The majority of AUVs were small short
range vehicles (the US was focusing on short range vehicles for
local surveying); the UK's Auto Sub 1 was the only (?) vehicle
designed ultimately for long range deep ocean surveying, with
the potential to pass through foreign territorial waters. However
NM advised that routine surveys in the ocean and into foreign
territorial waters was some 5 years hence, although Auto
Sub 1 had been in autonomous operation in the sea already (some
17 deployments).
v) Advice from the Brown (1989) review
was to look carefully at the present, well proven, procedures
for the deployment of static or free floating oceanographic instruments
in the oceans and in foreign territorial waters, and to build
on this experience. A Working Group of UNCLOS started work on
definitions and rules concerning the deployment of ODAS, but did
not meet again to complete the drafting. However, there is therefore
the start of agreed regulations concerning the deployment of Auto
Sub and other ODAS on which to build.
vi) In assessing the range of liabilities,
the group identified the following categories:
a) Diplomatic Liability
b) Operational: Civil Liability
Criminal Liability
vii) To minimise Diplomatic Liability
the procedures presently agreed for notification and seeking diplomatic
clearance should be meticulously followed, taking into account:
a) strictly following agreed diplomatic procedures for submission and the required documentation requesting permission;
b) education of scientists within foreign territorial state to allay any fears and to explian to their Government officials the context of the work;
c) involve observers from the foreign state in the deployment of AUVs;
d) make the results freely available
for subsequent use by the foreign state.
Work should be started now to educate
the various components of the Government machine about the future
deployment of such new instruments.
viii) RR informed the group of the potential
benefits of involving the military concept of "Water Space
Management" in the early deployments of AUVs, as well as
ensuring wide notification to the marine community. AUVs would
be tracked in their deployment through:
a) known pre-planned survey pattern, and
b) period position reporting.
DH advised this would be fine until
an intelligent algorithm within the navigation started making
decisions about future patterns of survey based on immediate data
- and then the voyage may not be so easy to track.
ix) The current draft UNCLOS documentation
on ODAS should be reviewed and updated in the light of the advent
of real AUVs. Proposed modifications should be submitted to the
relevant UNCLOS authorities for consideration. (Chairman's subsequent
note: it is not clear to whom and how we achieve this.)
The clear message was - raise the level of awareness through
communications, since "Auto-anything" creates distrust
initially!
x) The diplomatic constraints for deployment
will depend on the AUV's mission and sampling capability. Sampling
the water column only, according to UNCLOS, is permitted within
EEZs and should not meet resistance. On the other hand, surveying
below the seabed will be viewed more suspiciously as it could
be construed as "exploitation" of a foreign State's
EEZ.
xi) The issue of diplomatic liability
will not become a reality for a few years, since it is not envisaged
AUVs will be programmed to enter foreign territorial waters for
some time. There is therefore a valuable period of time in which
to address the diplomatic liability issues.
xii) Turning to Criminal Liability,
Masters of reputable ships should be well aware of the legal constraints
of their operations in foreign territorial waters and are unlikely
to be criminally negligent in the deployment of AUVs - simply
because the foreign state is unlikely to have laws specific to
AUV deployment (as opposed to the generic deployment of ODAS)
to cause a criminal offence.
Thus the only likely area of Criminal
Liability on the High Seas is covered by the international pollution
regulations, MARPOL, involving oil, hazardous chemicals or radionuclide
spillage in the sea.
xiii) Civil Liability can be simply
covered by appropriate Third Party Insurance. Civil liability
is only valid if fault or negligence can be proved, and these
can be considerably reduced through a thorough Risk Assessment
of the likely risks and for this assessment to be documented together
with the practical precautions taken. From the legal standpoint,
a generic risk assessment would be required before any legal framework
could be established to cover the deployment of AUVs.
xiv) The Working Group concluded that
a Code of Best Practice be established and, if agreed by such
an international group as the ISOM, it would become adopted internationally
as best practice.
xv) The Working Group further concluded
that the following documented actions would ensure future acceptance
of AUVs (or AODAS) in the same way in which ODAS are currently
accepted and protected as part of UNCLOS. These actions are:
a) A Statement of the Technology - its capability and scientific missions;
b) A Generic Risk Assessment of the deployment of AUVs in the oceans and in State waters;
c) A Code of Best Practice for deployment and recovery;
d) A Mission-specific Risk Assessment
procedure, including seeking diplomatic permissions.
xvi) The Working Group recommended that
Professor Ed Brown should be invited to update his 1989 Review
to establish the current situation on this topic. (Chairman's
note - this rightly should be initiated by the SOC Ocean Technology
division if they so wish, since the development of the UK AutoSub
is their property, but with the encouragement of the Working Group.)
xvii) The Working Group recognised it
had not achieved all the objectives in the Terms of Reference
and agreed to reconvene at an appropriate occasion after ISOM
96 had received a summary report.
xviii) A short summary report was delivered
to the 1996 International Research Ship Operators' Meeting, held
on 2 October 1996 (the day after this meeting); ISOM 96 supported
the continuance of this project.