Daiana Seabra Venancio writes for Ejiltalk news source speaks about Law of the Sea and the Titan incident: The legal loophole for underwater vehicles.
On 18th June 2023, the underwater vehicle (UV) Titan from the company OceanGate disappeared somewhere around the Titanic shipwreck, located at a depth of 3,800m, about 304 nautical miles off the coast of Newfoundland, Canada, on the high seas. The UV Titan was launched by a Canadian ship, Polar Prince. Moreover, OceanGate is an American Company based in Washington State, with a subsidiary company OceanGate Expeditions, registered in the Bahamas. On 22nd June 2023, the authorities found Titan parts lying close to the Titanic site.
Exploring the deep sea is hazardous because of environmental characteristics like pressure, thermocline, and issues with establishing communication. For example, the pressure increases by one atmosphere every 10 meters deep in the ocean. Thus, the reasons for the Titan’s collapse are still under discussion. To name a few potential issues that corroborate the implosion, the design of Titan has parts in carbon fibre, an experimental material that needs to be better known for its resistance to deep-sea pressure. In addition, the submersible was operating without any authority to certify its safety standards.
This comment discusses the current status of the use of underwater vehicles according to the United Nations Convention on the Law of the Sea (UNCLOS), explains the reasons why there is a legal loophole regarding UVs, and explores the issues of proliferation of unregulated activities, like submarine tourism.
1. The UNCLOS framework for underwater vehicles (UVs)
The UNCLOS provides a few categories that submersibles may fit: (1) ships or vessels, (2) equipment, and (3) devices. The UNCLOS does not define ship or vessel and uses these words interchangeably. Article 20 refers to submarines and other underwater vehicles without specifying if these underwater vehicles are ships. Consequently, it remains unclear whether all UVs must be registered in the same manner as ships. Exploiting this ambiguity, various stakeholders have been deploying these UVs without any regulatory constraints.
According to the UNCLOS Part V, launching UVs within the exclusive economic zone EEZ, the coastal State could impose restrictions based on their jurisdiction in activities related to marine scientific research (MSR), protection of the marine environment, and exploration and exploitation of natural resources. However, other activities like submarine recreational exploration are not restricted according to the UNCLOS provisions for EEZ and the high seas. Indeed, the eventual EEZ regulations from a coastal state about criteria for UVs would not apply to restrain the recreational deployment of any type of submersible.
According to UNCLOS Article 87, the high seas are open to all States, and they can exercise freedom of navigation. So, the jurisdiction on the high seas is related to the nationality of the ship, although there is no definition of ‘ship’ in the UNCLOS. Thus, the States generally decide what a ship is in their domestic laws. As a result, experimental UVs can engage in any activity on the high seas as long as it is not contrary to the UNCLOS provisions and the national laws of the State behind the operation authorizes it.
2. Reasons why underwater vehicles (UVs) remain unregulated in international law.
UVs are technological products only developed in a few States, like China, France, Japan, the United Kingdom (UK), and the United States (US). In addition, the use of UVs has been restricted mainly to MSR and military activities. Thus, these two factors explain the lack of effort to regulate the use of UVs internationally: only a few countries can produce them and their use is still limited. However, we are currently seeing an increase in their commercial use, particularly in the repair of submarine infrastructure and submarine tourism.
A previous attempt to regulate UVs within the context of marine scientific research (MSR) came in the form of the Draft Convention on the Legal Status of Ocean Data Acquisition Systems, Aids, and Devices (ODAS), where Article I(2) defines ODAS as “structure, platform, installation, buoy or other device, not being a ship, together with its appurtenant equipment deployed at sea for non-military purposes essentially for the purpose of collecting, storing or transmitting samples and data relating to the marine environment or the atmosphere or the uses thereof.” Interestingly, Article I(2)(i) recognizes a dynamic status for UVs according to how they navigate: they will be an ODAS while navigating vertically and a ship while navigating horizontally.
The International Maritime Organization (IMO) is engaged in developing a regulatory framework for maritime autonomous surface ships (MASS). However, the IMO’s mandate is focused on the shipping industry, and they are discussing surface ships. As a result, UVs remain beyond the IMO regulatory initiatives.
Considering the lack of international regulations over UVs, any relevant requirements for these vehicles will be decided under regional or domestic laws. For example, the European Union and the UK have regulations applicable to crewed UVs. China has extensive rules about UVs and requires a suitable and effective voice communication system to operate submersible passenger crafts, which the Titan did not have. The only way for this UV to communicate with the mothership was through text messages.
Focusing on the legal context regarding the UV Titan, it is necessary to look at the laws from the Bahamas, Canada and the US. The US, where OceanGate was registered, does not require inspections for submersibles with six or fewer passengers. The Bahamas has regulations for manned submersible craft. Still, these rules are restricted to UVs operated within Bahamian water or launched, recovered, operated or supported from a Bahamian ship, but the Titan was launched by a Canadian vessel. Although Bahamas National Requirements impose certification for UVs, these provisions do not apply to UVs operating on the high seas when launched by a non-Bahamian ship. Lastly, Canada has regulations for passenger submersible craft. However, these rules may not apply to Titan since the Canadian flagship Polar Prince was not functioning as a typical mothership. Instead, it is possible to argue that Titan was cargo. In any case, the Transportation Safety Board of Canada is investigating to find all causal and contributing factors to the Titan implosion.
The OceanGate is registered in Washington, US, and the UV Titan used to have a capacity for only five people. Therefore, according to US regulations, the company was operating under a legal loophole using the category of uninspected vessels. This could explain why OceanGate was legally operating in the US while deploying the Titan UV without any authority certifying the safety of the submersible. Also, neither the Bahamian nor the Canadian regulations were applied to the Titan navigation on the high seas.
Until now, their use of UVs has been restricted, mainly for marine scientific research (MSR), surveillance, and military purposes. Launching uncrewed UVs is common and unregulated. But the truth is that any incident with an uncrewed UV will not put any life at risk, so there is no pressure for regulations. However, after the Titan incident, it is necessary whether it is necessary to regulate the launch of crewed submersibles for commercial activities like tourism.
The lack of initiatives at the international law level to regulate UVs may result in danger for passengers. If submarine tourism becomes widespread, it will not be sustainable for the authorities to afford to search and rescue people, as reports suggest that the estimated cost to find Titan is above $ 6.5 million. Indeed, we rely on domestic laws to impose restrictions on submersible activities for tourism or other leisure activities, which may result in the proliferation of companies operating without any safety standards. Lessons learned, the States should consider creating minimum safety standards for crewed UVs to prevent more incidents like the Titan from happening.
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