There is no legal definition of what unmanned vessels and UMVs are. Neither the international law namely, the 1982 United Nations Convention on the Law of the Sea (UNCLOS), nor the Portuguese legal framework, define what unmanned vessels and UMVs are.  There is a legal gap regarding both the definition and the rules directly applicable to the use of unmanned vessels and UMVs in the different maritime zones.

* For the purpose of MARINFO project, unmanned vessels refer to ships to be used in maritime transportation, with the main feature of having no human presence on board.
UMVs refers to an untethered, self-propelled and self-powered vehicle with the capacity of movement without a human presence on board. UMVs can integrate different types of vehicles: (i) unmanned surface vehicles, (ii) unmanned underwater vehicles and (iii) amphibious vehicles.

The UNCLOS establishes the legal framework for ocean-related activities, and despite does not directly recognize the existence of unmanned vessels and UMVs, its principles and rules do apply to their operations. In theory, and adopting a dynamic interpretation of the UNCLOS, unmanned vessels can integrate the category of ships despite the fact of being unmanned.  Conversely, UMVs, which are floating devices of small dimension, can be framed in the category of equipment, especially when used in marine scientific research under Part XIII of UNCLOS.

There is no universal definition of ship under the UNCLOS. The UNCLOS only provides a definition of warships. Scholars are of the opinion that, depending on their features, unmanned vessels are indeed ships since there is nothing in the international law that requires a ship to be manned.

It depends. As a rule, international maritime and shipping conventions adopt themselves a definition of ship. If a specific unmanned vessel complies with the requirements of a definition provided for in a certain international convention, such international convention applies to such specific unmanned vessel. In this case, the unmanned vessel has to comply with the principles and rules set by the convention. Is likely that many conventions will have to be amended because many of its provisions were drafted for manned ships.

UNCLOS requires a warship to be under the command of an officer duly commissioned by the government of the State and manned by a crew, which is under the armed forces discipline. However, scholars argue that this rule also applies to on-shored and distance-based commissioners and crew, provided they are under the armed forces discipline.

(Article 29, UNCLOS)

If unmanned vessels are classified as ships, they are entitled to enjoy the right of innocent passage in the territorial sea of a third State. In this case, when crossing the territorial sea, the unmanned vessels have to comply with the coastal State’s rules and regulations regarding the passage. UMVs, which are classified as equipment, are not per se entitled to the right of innocent passage. The situation is different in the case of use of equipment classified as UMVs in the context of activities permitted by the coastal State.

(Articles 17-21, UNCLOS)

If a State grants its flag to an unmanned vessel it has to effectively exercise jurisdiction and control in administrative, technical and social matters over it and over its shore-based master and crew. It also has to maintain a register of unmanned vessels flying its flag, and take the necessary measures to ensure their safety at sea.

(Article 94, UNCLOS)

Yes. Any State can adopt its own definition of unmanned vessel and UMV since the UNCLOS specifies that the rules for registration of ships and equipment are under the exclusive responsibility of the flag State.

If an unmanned vessel crossing the territorial sea of a third State does not comply with the laws and regulations in force regarding the passage, the coastal State may take the necessary steps to prevent and suppress passage, which is not innocent. In accordance with the general principles of international law, the coastal State can request the unmanned vessel to leave the territorial sea or seize the unmanned vessel, if this measure is necessary and proportional to stop the unlawful conduct.

(Article 25, UNCLOS)

Yes. The coastal State has sovereignty on its internal waters and it can impose any conditions for unmanned vessels and UMVs to enter into the internal water and ports. As a consequence, it can nominate ports, which are open to unmanned vessels and UMVs, impose certain conditions for its entrance, including regarding safety and security, and it can refuse entrance, even if the unmanned vessel or the UMV is in distress, provided that such refusal is not discriminatory and do not constitute an abuse of right.

(Article 2, UNCLOS)

Small UMVs used in marine scientific research can be classified as equipment under Part XIII of the UNCLOS. Although the UNCLOS does not define what equipment is, it is usually defined as a contraposition to installations, which are fixed structures. Equipment is normally not fixed to the ocean floor, is not entitled to have safety zones around, can be quickly deployed and removed, and is normally used for a specific particular purpose.

As equipment, UMVs shall bear identification markings to ensure that the State of registry or the international organization to which they belong can be identified. UMVs shall also have warning signals internationally agreed, and adopted taking into account rules and standards established by the competent international organizations. However, so far, such rules have not been adopted yet.

(Article 262, UNCLOS)

Yes. When a researching State or an international organization submits a project to a third State to carry out marine scientific research in areas under its sovereignty or jurisdiction, it has to provide detailed information to the coastal State, namely on the method and means to be used, including name, tonnage, type and class of vessel and a description of scientific equipment to be used in the research. Therefore, as equipment, UMVs shall be dully identified in the document of the project.

(Article 248, UNCLOS)

Yes. The coastal State is entitled to regulate marine scientific research in maritime areas under its sovereignty or jurisdiction. When regulating marine scientific research, the coastal State exercises its prescriptive jurisdiction and it has the power to determine, prescribe and impose constrain on the use of research methods. This power is more limited in the exclusive economic zone and on the continental shelf than in the territorial sea.

(Articles 245 and 246, UNCLOS)

No. In accordance with Part XIII of the UNCLOS, the State shall grant authorization for a specific marine scientific research project to be carried out in its territorial sea, and consequently, for the deployment of any UMV.  However, if so desires, the State has the possibility, on its domestic legislation, to waive the requirement of express consent. If this is not the case, any deployment of UMVs in the territorial sea for marine scientific research purposes always depend on the coastal State previous authorization.

(Article 245, UNCLOS)

Yes. In accordance with Part XIII of the UNCLOS the deployment of UMVs in the exclusive economic zone or on the continental shelf of a third State cannot be done without its consent. However, in accordance with the UNCLOS, there are two situations where the consent of the State is implied or presumed: (i) the consent is considered implied six months after the date upon which the documentation of the project has been submitted, and the State has not given the express consent  and remains silent within four months after the submission of the application; (ii) the coastal State is also presumed to have given its consent if the marine scientific research project and the deployment of UMV is to be undertaken by an international organization or under its auspices, and the coastal State has either approved the project within the framework of the organization or has expressed its willingness to participate in the project and raised no objecting within four months of the notification of the project.

(Articles 252 and 247, UNCLOS)

In accordance with Part XIII of the UNCLOS, in normal circumstances, the coastal State is not entitled to refuse its consent for deployment of UMVs in “pure” marine scientific research projects, which are those carry out exclusively for peaceful purposes and in order to increase scientific knowledge of the marine environment for the benefit of mankind. This consent is not applicable in the case of UMVs used in marine scientific research projects involving drilling into the continental shelf, the use of explosives, the introduction of harmful substances into the marine environment, and involves the construction, operation or use of artificial islands, installations, and structures.

(Article 246, UNCLOS)

In accordance with Part XIII of the UNCLOS, the coastal State has the discretion to hold consent to the deployment of UMVs in a marine scientific project in the following situations: (i) if the project is of direct significance for the exploration and exploitation of natural resources, whether living or non-living;
(ii) if the project involves drilling into the continental shelf, the use of explosives or the introduction of harmful substances into the marine environment; (iii) if the project involves the construction, operation or use of artificial islands, installations, and structures; (iv) if the information submitted to the coastal State is inaccurate or there are outstanding obligations from a prior project.

In accordance with Part XV of the UNCLOS, the refusal of the coastal State is not subject to the compulsory dispute settlement mechanism under the UNCLOS, which means that the proponent State or the international organization has to comply with the decision of the coastal State and do not proceed with the deployment of the UMV.

(Article 246, UNCLOS)

In the case of applicability of the Decreto-Lei No. 38/2015 (Articles 47 and 57), marine scientific research projects presented by national entities shall be submitted to the General Directorate of Natural Resources, Maritime Services and Safety, which has the competence to issue the title for the private use of the national maritime space that authorizes the implementation of the project. Projects carried out in the maritime zones adjacent to the Autonomous Regions, up to 200 nautical miles, shall be submitted to the competent organism of the Autonomous Regions: in the  case of Autonomous Regions of Azores to the Regional Directorate for Sea Affairs; in the case of Autonomous Regions of Madeira to the Secretariat of Environment and Natural Resources – entities with competence to issue the title for the private use of the national maritime that authorizes the implementation of the project. Marine scientific research projects presented by foreign entities shall be submitted to the Ministry of Foreign Affairs, which redirects the requests to the competent authorities.

(Decreto-Lei n.º 38/2015 and Decreto-Lei n.º 52/85)

The entity in charge of the research project is subject to the following obligations when it comes to UMVs:

1. Obligation of information – the project document shall provide a description on the equipment used, notably regarding the use of UMVs;
2. Obligation to maintain the good environmental status of the marine environment – this a general obligation of the research project, but it is extended to all instruments and equipment used. Therefore, UMVs used during the research project also have to comply with it;
3. Obligation of removal – any equipment used that for some reason is sunk, shall be removed from the marine environment at the completion of the project.

(Decreto-Lei n.º 38/2015 and Decreto-Lei n.º 52/85)

In the light of national legislation, incidents that involve unmanned vessels or UMVs are classified as a sea event. However, the legal regime provided for in the Commercial Code regarding collision between ships can only apply in case unmanned vessels are considered ‘ships’. In incidents involving UMVs that are classified as ‘equipment’, the legal regime of the Commercial Code does not apply. In any case, there are several aspects that need to be discussed mainly regarding the requirements of the civil liability regime imposed by the Civil Code, when unmanned vessels and UMVs are involved in a collision at sea.

At the domestic level, the legal regime that applies to purely ecological damages caused to the marine environment is provided for in the Decree-Law No. 147/2008, of 29 July. It is possible that purely ecological damages caused by unmanned vessels or UMVs are framed within this regime, provided that such damages are caused by the fault of an entity that is deemed as “operator” for the purpose of the law. In this scenario, there are several technical questions that need to be discussed.

The Portuguese legislation requires that maritime insurance shall be in place to cover risks at sea. However, there are no specific rules that apply to insurance of unmanned vessels. Regarding UMVs, the national legislation does not require that UMVs shall have a civil liability insurance to be able to navigate in waters under Portuguese sovereignty or jurisdiction. However, when they are used in activities to which insurance is compulsory, such insurance shall be extended to UMVs. This is the case of marine scientific research, for instance, that requires a title for private use that depends on the existence of an insurance contract.

Unmanned vessels shall be compulsorily removed from the marine environment in case they sink. This obligation binds the owner, but in certain conditions involving a threat to the marine environment, the removal can be done by national authorities, at the expenses of the owner. UMVs that are classified as equipment and used for marine scientific research projects shall be compulsorily removed from the marine environment once the project is completed, even if they are not sunk.

(Decreto-Lei n.º 64/2005 and Decreto-Lei 52/85)

Yes. Procedural norms applicable to international courts, notably the International Court of Justice and the International Tribunal for the Law of the Sea, permit that parties can present, within the category of documentary evidence, photos, videos and sound records. There is no reason that justifies the refusal of such evidence simply by the fact that they were collected by UMVs

In principle, evidence integrating photos, videos and sound records can be submitted before the national courts within the category of documentary evidence. Its admissibility in criminal cases is more restricted than in civil procedures because the legal conditions imposed for them to be accepted are more demanding and limited. Yet, this is not related to the fact that the evidence was collected by UMVs.