Document Type : Original Independent Original Article
Authors
1 Assistant Prof. at Public International Law, School of Management, Imam Khomeini University of Marine Sciences, Nowshahr.
2 Hossain Sharifi Traz Kohi: Retired professor Public International Law of Imam Hussein University (AS), Tehran, Iran,
Abstract
Highlights
Introduction
The modern naval warfare has experienced many changes due to the development of naval technologies, implementation of combined operations, and use of flight units such as helicopters, aircraft carriers, and unmanned aerial vehicles (UAVs) in naval operations. Therefore, it would not be sufficient to only formulate a specific set of rules for naval warfare. In addition to the international aviation law, the governing rules of the airspace of oceans are reflected as a part of the international law of the seas. These rules have also affected the naval warfare. The 2003 invasion of Iraq is an exemplar of the simultaneous deployment and use of naval, air, and ground forces. The use of unmanned combat air systems at the sea has now raised various issues regarding the international aviation law, the maritime laws, and the naval warfare law. There is no specific consensus on the use of UAVs at the sea. In fact, there is a legal gap. The San Remo Guidelines have partly attempted to consider the use of aircrafts in the naval warfare. However, although the San Remo Guidelines address most of the actions and responses of the air warfare and the naval warfare, it is still unclear whether it can be applied to UAVs. What needs to be interpreted and analyzed? Hence, this paper aims to determine whether UAVs can be used within the framework of the rules governing the law of naval warfare and the basic principles of the humanitarian law. In addition, the paper seeks to prove that the law of naval war has been amended and revised by the San Remo Guidelines with regard to the humanitarian law in order to be applied to UAVs.
Methodology
In this descriptive analytical study, the research data were collected were collected through the objective, systematic, and quantitative description of the available information content as well as the analysis of the rules governing the use of UAVs within the framework of the naval law and basic principles of the humanitarian law. Moreover, the desk method was used for data collection.
Results and Discussion
The naval armed conflict today means “the use of tactics and the conduct of military operations on, below, or above the sea” as a result of developments in the marine technology. UAVs are classified as tactical tools used in military operations at the sea. According to the Air Force and Missile Warfare Guidelines, an “aircraft” is defined as a means of carrying out air reactions whether fixed or rotating. In Paragraph 13 of the San Remo Guidelines, military aircrafts are defined as airplanes belonging to the armed forces of a state with their external markings indicating their nationalities. An aircraft is commanded by a member of the armed forces, and the crew is subject to the military orders. The Harvard Guidelines follow this definition. It defines drones as “unmanned military aircrafts of any dimensions that are capable of carrying and launching a weapon that can be used directly against a target.” According to the author, the armed and unarmed UAVs belonging to the military forces are considered military aircrafts, and their mere belonging to the armed forces is sufficient for their military status. Hence, the host government will be held accountable for any actions taken by these UAVs. The appropriate legal status, therefore, is to treat them as military aircrafts in addition to exercising the right of the armed conflict on them. In fact, the government-owned and military aircrafts are subject to the international law in all respects. By plane definition, there is no reason for rejecting a UAV just because it has no occupants. The 1923 Hague Convention, the Missile Technology Control Regime, the Chicago Convention, and the Harvard Directives are the documents that can be applied to UAVs. The first document contains general rules, whereas the second one imposes restrictions on their exports, and the Chicago Convention (Article 8), while determining their status, requires UAVs to be licensed to fly within the territory of a state. The Harvard Guidelines also have appropriate general rules. However, the most important document is the San Remo Guidelines seeming to be applicable to the use of UAVs in naval warfare. Nevertheless, the Convention on the Law of the Sea also has some rules on how aircrafts fly in maritime territories. In addition, there is no customary treaty or rule that particularly prohibits or restricts UAVs. However, some experts believe that “by using the basic principles of the humanitarian law, the use of UAVs in the armed conflicts would violate those principles; therefore, the prohibition of their use can be realized.” However, it appears difficult to accept this view based on the realities of the international community and the state of their applications in different geographical areas such as the seas, deserts, and military areas. Nonetheless, the basic principles of the law of the armed conflict, which are characterized by a customary nature, have the potential to impose such restrictions on these devices and can rule out the use of UAVs as tools and methods of warfare. The research findings indicate that international treaties and customary laws, especially the humanitarian law, are not indifferent to the legal status of UAVs, despite the air and missile war guidelines as well as the Sun Guidelines in particular. They are not binding documents. In fact, they have amended and revised the law of the naval warfare in accordance with the rules of the humanitarian law. Hence, they can partly be applied to UAVs.
Conclusion
Military aircrafts now play a much more developed role in the naval warfare than ever before. In addition to military aircrafts, UAVs have greatly facilitated the implementation of different naval warfare methods such as naval siege, no-go zone, naval patrols, and coastal hospitalization. However, most of the rules for using aircrafts apply to peacetime documents. The main effort, along with the draft rules of the 1923 Hague Air War, was made by the San Remo Guidelines, which sought to apply the fundamental principles of the humanitarian law, the provisions of the Convention on the Law of the Sea, and the Chicago Convention to regulate the naval warfare. Therefore, UAVs, like other means of warfare, must be used in accordance with the fundamental principles of the humanitarian law and the requirements of the human rights. Basically, guidelines such as the Oxford Guidelines, the San Remo Guidelines, and the Harvard Guidelines are not considered the official sources of law. Prepared by legal experts, they generally reflect the practice of governments at the time of their formulation. They also represent a synthesis and analysis of customs and treaties, providing a concise and clear explanation of legal rules. The San Remo Guidelines address a wide range of issues related to the conduct and response of the air and naval warfare, which had not previously received any attention in previous conventions. However, despite the ability to implicitly apply the use of UAVs in the naval warfare, these vehicles and their complexity have not been considered explicitly; thus, an update appears to be necessary. However, the Harvard Guidelines will partially fill this gap by repeating the rules of the San Remo Guidelines and treating UAVs as military aircrafts.
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