While more precise definitions are clearer, they should not be used to determine which marine equipment qualifies as “ship” for the purposes of UNCLOS navigation rights. These definitions are often specific to the objectives of the specific convention[153] or national legislation. The diversity of definitions makes it necessary to take into account the specific contract in order to determine whether it is applicable to the EUTMR. [154] Any precise definition of “ship” or “ship” in a treaty would apply in the context of that treaty, which could result in the exclusion of EUTM from that treaty, but not necessarily from others. The same applies to existing ships and ships which, because of their size or purpose, may not be bound by all treaties of the sea. Since most of these other treaties expressly exclude the operation of government ships for non-commercial purposes, they are of limited importance in the military context. [155] These more restrictive definitions, which limit the application of a convention to a particular category of “ships,” show that states were prepared to clearly define which maritime equipment is bound by certain treaties, suggesting that the lack of explicit language in UNCLOS should encourage a more open approach. [156] The inclusion of UMVs in the category of warships as defined in Article 29 of UNCLOS is more difficult. The explicit requirement that a warship be “manned” by a crew and commander can be an insurmountable obstacle.
It would be acceptable for the purpose and purpose of the definition – to distinguish between state ships and give them rights of belligerency rather than imposing manning requirements – to prevail over the obvious clear meaning of the provision. This article provided a valid rationale for such a step of interpretation. Moreover, the strategic value of granting war rights to these devices and using them to carry out attacks in armed conflicts may prove irresistible to States. This seems to have happened with respect to unmanned aerial systems. The lack of clarity has led some to propose a definition of “ship” based on an essential function of the aircraft. For example, Oliver Daum examines a number of international treaties and argues that a “ship” must have “transport characteristics.” [157] It is quite restrictive as to what it means to participate in transport, stating that the ship “must be intended or capable of transporting certain items from one port or place to another port or place,”[158] such as the transport of weapons from one place to another. [159] He distinguishes between carrying weapons (which he classifies as being outside the device) and carrying sensors (which, in his view, are part of the device), noting that only the former meet the transport requirements. [160] This means that it states that if a UMV does not perform a “transport mission, that is, the transport of goods, persons, weapons or other objects from one port to another”, it ceases to be a ship. [161] Daum`s distinction between carrying weapons and carrying sensors is difficult to accept: both can be essential for the use of a military vessel.
It would also be a strange result if a maritime device were activated and deactivated in such a fundamental category of maritime law, which would add to the ambiguity and confusion as to the rights and obligations of an RMC at any given time. Before addressing the question of the extent to which the definition of “warship” might be flexible (or not), it is important to understand the historical context of the distinction between warships and other warships and what this says about the purpose and purpose of article 29 of UNCLOS. This category of “warships” originated in the 19th century in international law to distinguish state ships (warships) from privateer ships – individuals who received permission from warring parties via a stamp letter or other means of fighting enemy ships. [204] The ban on privateers dates back to the 1856 Declaration on Respect for the Law of the Sea, adopted as part of the General Treaty for the Restoration of Peace (commonly known as the Treaty of Paris) to end the Crimean War. [205] The prohibition of this practice limited military activities to the military vessels of states in conflict. A rule that now has a customary status. [206] Other researchers are more permissive. It was sufficient for the programming to be carried out by military personnel. [231] Norris suggests that the same interpretive maneuvers would be possible with UMVs that allow classification as warships. [232] Sovereign immunity for state-owned or operated vessels engaged in governmental and non-commercial service has been recognized in U.S. law, customary international law, and international treaties.
In The Schooner Exchange v. McFaddon,1 the U.S. Supreme Court recognized in 1812 that U.S. courts do not have jurisdiction over military ships in the service of another sovereign state, since warships are considered political and military instruments of the state. Customary international standards on immunity in respect of State-owned ships and warships are reflected in the United Nations Convention on Jurisdictional and Property Immunities, the International Convention for the Unification of Certain Rules relating to the Immunity of State-Owned Ships and the LOSC. It is necessary to focus on the categories of “ship” and “warship” in the United Nations Convention on the Law of the Sea because there are insufficient governmental practices and opinio juris outside that Convention to provide a basis for the recognition of the rights of CUVs in customary international law. The limited (public) use of UMVs by state forces in the disputed areas means that their rights and obligations have not been clarified by the response of other states to their deployment. [6] Even if we limit the analysis to the provisions of UNCLOS, there is no firm opinion among states and experts in international law about where these devices can go and what they can do when they are there.
