Unmanned Naval Vehicles at Sea: USVs, UUVs, and the Adequacy of the Law

Abstract

There can be no doubt that law exercises many forms of limitation and regulation over the planning and conduct of maritime operations. But it is equally important to recognise that law is also an important weapon in the conduct of maritime operations. This is perhaps most eloquently evidenced in the juxtaposition of two highly influential treatises on the factors affecting the conduct of operations at sea. Alfred Thayer Mahan's classic The Influence of Sea Power upon History (1890)1 is generally considered to be the naval equivalent of von Clausewitz's On War - one of the foundational texts of the discipline, and consequently the subject significant reference, critique and exegesis. The other side of this coin is D P O'Connell's iconic 1975 study The Influence of Law on Sea Power - an overt genuflection to Mahan's classic on maritime strategy. Both scholars - O'Connell as a celebrated scholar of international law who was a Reserve Officer in the RAN, and then the RN; Mahan as an active service US Naval Officer who was also an internationally recognised strategic theorist - were sensitive to the impacts of law upon the projection and use of seapower. O'Connell, for example, describes the role of the Law of the Sea (LOS) and the Law of Naval Warfare (LoNW) in securing the delay imposed upon the German pocket battleship Graf Spee in Montevideo after the battle of the River Plate on 13 December 1939. Clever use of the legal opportunities inherent in the situation allowed for a deception operation and mustering of forces such that Graf Spee was scuttled by her own Ship's Company on 17 December 1939, rather than steamed out to what they thought would be certain destruction at the hands of a (they had been lead to believe) now much stronger British force laying in wait. This was a battle, O'Connell observed, where 'the points of law arising in the situation were weapons in the overall armoury, to be used adroitly in combination with naval force to bring the event to the desired end'. Mahan, as a member of the US delegation to the Hague Peace Conference in 1899, was a decisive influence in the US decision to cast the only negative vote on the proposal to prohibit use at sea of projectiles designed to spread asphyxiating or deleterious gases, which would - in his view - have limited, for no justifiable reason or outcome, the US Navy's ability to threaten, fight and win at sea.