General Atomics MQ-9 Reaper, a hunter-killer surveillance UAV. Photo: Wikipedia / Lt-Col Leslie Pratt

The successful trial of an autonomous drone capable of long-endurance unmanned ocean mapping operations is only the latest development in a contest for supremacy in maritime military drone technology.

The proliferation of military drone use is stretching the limits of existing international law and increasing the arena and likelihood for international incidents. To pre-empt legal unilateralism and mitigate conflicts, leading developers and users should negotiate agreed guidelines for maritime drone use, spelling out what is and is not acceptable. 

Drones are already used for intelligence collection, surveillance and reconnaissance as well as weapons, sometimes in combination. Now it is being suggested that that the US use them in freedom of navigation operations (FONOPs) as well.  

The US currently has a decided edge in military drone technology and use, although China is rapidly catching up in its near seas. As the leading user, the US is deliberately or de facto setting the rules governing the use of drones. But China and other developing countries have interpretations of the legality of drone missions that differ from those of the US.

Many drones seem designed and destined to operate in foreign air and sea space without authorization, including in, over and under exclusive economic zones, archipelagic waters and even territorial seas. But several countries in the region including China, Malaysia and Thailand do not allow military activities in their EEZs without their permission. China does allow military activities in its EEZ, but with conditions. 

Drone use in the region is already creating controversy. In late June 2011, Chinese jets “chased away” an unidentified US surveillance jet (rumored to be a drone – a Global Hawk) over the Taiwan Strait. China is also reportedly trying to jam US Global Hawks flying over the South China Sea.

When it was revealed that China intended to deploy a drone over the East China Sea, the Japanese defense minister at the time, Itsunori Onodera, announced that his country would “consider shooting down drones that enter Japanese airspace,” significantly raising the prospects of escalation.

Soon after, then-prime minister Shinzo Abe approved a plan for the Japan Self-Defense Forces to “engage drones intruding into the country’s airspace.” In response to Abe’s remarks, a spokesman for the Chinese Ministry of National Defense stated that shooting down a Chinese drone would constitute an “act of war.”

In December 2016, the US demanded “the return of an underwater drone seized by a Chinese warship in the South China Sea.” US Navy lawyers writing in their personal capacity claimed that the drone had sovereign immunity and that China had violated international law.

Now India has prohibited aerial drones within 3 kilometers of its naval assets with the penalty of destruction or confiscation of the drone. This law may be aimed at domestic amateurs, but it is an indication of growing sensitivity to their use. 

There are many open legal questions that need to be addressed. International law, including the 1982 UN Convention on the Law of the Sea (UNCLOS) prohibits overflight of foreign territorial (within 12 nautical miles) seas without permission. Also, in a foreign territorial sea, submarines must surface and show their flag.

Moreover, in the 200nm EEZ, a foreign user cannot conduct marine scientific research without permission.

Indeed, according to UNCLOS, ”The deployment and use of any type of scientific research installations or equipment in any area of the marine environment shall be subject to the consent regime.” Some drones may well be regarded as such research “equipment.” Also according to UNCLOS, marine scientific research can only be conducted for “peaceful purposes.” Do some or all of these provisions apply to drones – and if so, how?

If developing countries simply sit back and allow the legal norms to evolve with the practice of major powers, then they are allowing “might to make right.” Moreover the different legal interpretations will result in repeated kinetic clashes until some modus vivendi is established. But this messy process will also favor the most powerful.

The particular use of drones for FONOPs may be an attempt unilaterally to establish the legal rules governing their use. As one supporter of the idea says, “Using unmanned systems for FONOPs could help to establish the desired US government precedent regarding these platforms and the law of the sea [by] communicating expected norms regarding their usage under existing conventions and customary law.”  

The default option is to “do nothing” – just let the rules evolve – or “grow” like Topsy. But developing countries – perhaps led by China – could try to get ahead of the curve and negotiate voluntary guidelines for the use of drones in waters under foreign jurisdiction. This effort should include the US – if it is willing, constructive and cooperative, but proceed without it if it is not.

Specifically, the guidelines should:

  • Recognize the rights, jurisdiction and duties of the coastal state in the EEZ as provided in UNCLOS Article 56;
  • Recognize the rights and duties of other states in the EEZ as provided in UNCLOS Article 58;
  • Recognize the need for balance between the rights and duties of a coastal state in its EEZ and the rights and duties of other states (the obligation to pay due regard to the rights of others);
  • Recognize that UNCLOS Article 300 prohibits the abuse of rights, jurisdiction and freedoms recognized under the Convention; and
  • Acknowledge the importance of resolving disputes by peaceful means. 

The guidelines should include agreement on the following issues:

  1. Do drones have sovereign immunity?
  2. Should there be a legal distinction between autonomous and remote-controlled drones?
  3. Does their deployment violate the duty to exercise due regard for the right s of other states like not presenting a hazard to navigation?
  4. Should drones operating in waters under the jurisdiction of another state be allowed to interfere with the communications, computers, and other electronic systems of vessels or aircraft of another state?
  5. Should drones be used for marine scientific research in waters under another state’s jurisdiction without their consent?
  6. Should drones be used to undertake actions directed against the territorial integrity of any state or in any other manner inconsistent with the UN Charter?
  7. Should drones be used for maritime surveillance for peaceful purposes in waters under other states’ jurisdiction, as long as they do not prejudice the rights and responsibilities of the coastal state?

There are many other legal questions begging answers. Such guidelines would set out broad principles of common understanding regarding the use of drones but be non-binding and exhortatory.

To satisfy nervous nellies, the guidelines should contain a non-prejudicial clause stating that nothing in the guidelines, or activities pursuant to them, should be interpreted as prejudicing the rights and responsibilities of any state under UNCLOS.

In sum, the guidelines would assist in clarifying the rights and duties of both coastal states and user states as well as certain terminology regarding drone activities in, over and under others’ waters. In doing so they would, it is hoped, mitigate conflict.

Mark Valencia

Mark J Valencia is an internationally recognized maritime policy analyst, political commentator and consultant focused on Asia. Most recently he was a visiting senior scholar at China’s National Institute for South China Sea Studies and continues to be an adjunct senior scholar with the Institute. Valencia has published some 15 books and more than 100 peer-reviewed journal articles.