Opinion: "Narco-Drones" Are Here, and Our Maritime Laws Aren’t Ready – The Maritime Executive

A new frontier for smuggling: Spanish police broke up a team of fabricators who allegedly built drug-carrying cargo drones for smuggling gangs (Policia Nacional)

PublishedJul 27, 2022 11:32 PM by Natalie Klein and Rob McLaughlin

This month, Spanish police authoritiesseized autonomous underwater vehicles, each capable of transporting around 200 kilograms of drugs. Itsnot the first timepolice authorities have caught an uncrewed vessel carrying illicit substances.

These remote-controlled narco-drones, narco-subs or underwater drones herald a new era in international drug trafficking. Drugs and other illicit goods can now be transported across the oceans, controlled by a remote operator located anywhere in the world.

International law isnt entirely ready for narco-drones

There isnt one universal definition of a ship or vessel. This makes it difficult to know when rights and duties attach to that ship.

China, for example, has ashark-shaped droneused to gather intelligence. While anaval surveillance shipmay be entitled to the freedom of navigation, it shouldnt be presumed that such a small, uncrewed vehicle also enjoys this right.

Law enforcement officials are already using uncrewed sea vessels for policing purposes. Australiagifted drones to Sri Lankalast year to support efforts against migrant smuggling operations.

Private companies are designinguncrewed surface vehiclesfor use patrolling against illegal fishing.

The new technology will likely become a critical component for countries wanting better information about whos doing what and where.

Law enforcement

International law requires states to cooperate and share information to prevent different transnational crimes at sea. For example, Article 108 of theUN Convention on the Law of the Searequires all states to cooperate in the suppression of drug trafficking on the high seas.

The1988 Drugs Conventiongoes further, allowing parties to the treaty to stop and board each others vessels when theyre reasonably suspected of trafficking in illicit drugs.

However, if theres no-one onboard a remote-controlled submarine, the existing rules and procedures for law enforcement cannot work as they have before.

TheInternational Maritime Organizationis undertaking a study of who is a master and seafarer in the context of uncrewed surface ships used to transport cargo around the world. While the organisation has an important focus on maritime safety, there are many legal questions relating to crimes at sea that also need to be answered.

Whos held criminally responsible?

Determining who might be held criminally responsible when an uncrewed vessel is seized isnt immediately apparent.

Australian legislation criminalises drug-trafficking when a person transports the substance but doesnt refer to a situation where the person isnt present at the time of transport. A person isnt necessarily in possession of illicit drugs if theyre remotely controlling a narco-drone.

The alternative may be to prosecute an alleged offender on the grounds theyve aided and abetted in the crime.

This also raises the question of whether, and how, the designer of an autonomous vehicle may be criminally responsible. For example, what if the person designing the autonomous vehicle didnt know it was to be used for criminal purposes?

We may need to rethink how we understand criminal recklessness or intention as requirements of a drug-trafficking offense when remote-controlled trafficking occurs.

Designers and manufacturers of maritime autonomous vehicles may need to consider how to safeguard their products against improper use.

Who has jurisdiction?

Determining which country has legal jurisdiction when a criminal enterprise uses autonomous narco-subs may be a complex issue.

For example, what if the alleged offender is a Russian national located in Belarus whos operating the autonomous vehicle to transport drugs from Myanmar to Australia?Australia doesnt usually criminalize conduct by foreigners that occurs in the sovereign territory of other countries (the offense ofkilling an Australian overseasbeing one exception).

In light of uncrewed vessels, states may need to consider new bases of jurisdiction to justify the exercise of authority over an alleged offender.

Even if law enforcement officials manage to arrest the perpetrator and assert jurisdiction, prosecution will likely depend upon a range of other challenges such as criminal intelligence sharing and extradition processes.

Prior to the recent seizure in Spain of the narco-drones, Houthi rebels in the waters around Yemen were usingsmall remote-controlled vehicles laden with explosivesto attack Saudi ships.

This terrorist act potentially falls within the terms of the2005 Conventionfor the Suppression of Unlawful Acts against the Safety of Maritime Navigation. States party to this treaty are to criminalize these sorts of actions and prosecute or extradite those responsible.But as with drug-trafficking laws, questions arise as to how terrorism laws will apply to the use of these autonomous vessels.

Natalie Klein is aProfessor at UNSW Sydney.

Rob McLaughlin is aProfessor at theCentre for Military and Security Law, Australian National University.

This article appears courtesy of The Conversation and is reproduced here in an abbreviated form. The original may be found here.

The opinions expressed herein are the author's and not necessarily those of The Maritime Executive.

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Opinion: "Narco-Drones" Are Here, and Our Maritime Laws Aren't Ready - The Maritime Executive