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Law and Policy for International Submarine Cables: An Asia-Pacific Perspective

Published online by Cambridge University Press:  24 February 2012

Yoshinobu TAKEI
Yoshinobu TAKEI*
Affiliation:
Utrecht University, the Netherlands
*
y.takei@uu.nl
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Abstract

Whilst international submarine cables are essential to modern-day life, threats to these cables from competing ocean uses, such as fisheries, persist. Protection of submarine cables, and resolution of potential conflicts among various ocean uses, is needed now more than ever. This article examines and identifies weakness in the current legal regime for submarine cables, with a specific focus on the regulations concerning punishment for the breaking or damage of submarine cables and the integrated management of competing ocean uses. After discussing the legal regime, the article offers some proposals for reform, outlining various options for future action at the international level.

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Type
Articles
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Asian Journal of International Law , Volume 2 , Issue 2 , July 2012, pp. 205 - 233
Copyright
Copyright © Asian Journal of International Law 2012

In November 2010, Wikileaks started disclosing a large number of American diplomatic cables. One such cable testified to the importance of submarine cables as critical infrastructure in modern-day life.Footnote 1 The United Nations General Assembly has noted “that fibre optic submarine cables transmit most of the world's data and communications and hence are vitally important to the global economy and the national security of all States”.Footnote 2 Despite their importance, threats from competing ocean uses, such as fisheries, persist. Protection of submarine cables, and resolution of potential conflicts between various ocean uses, is needed now more than ever.

This article examines the legal regime for international submarine cables beyond the territorial sea. After identifying the weaknesses in the current regime, it offers a proposal for reform at the international level. The article focuses on two central issues, namely: (1) punishment for submarine cable breaking or damage; and (2) management of competing ocean uses within areas under national jurisdiction and in areas beyond national jurisdiction. These two issues are related: evidently, the threat of criminal responsibility induces other ocean users to conduct themselves prudently, whereas adequate management of competing ocean uses would contribute to reducing the risk of damage to submarine cables inadvertently inflicted by other users of the oceans. As pointed out by one commentator, “[t]he primary challenge for the legal regime governing submarine cables is how to accommodate competing uses of the ocean and competing interests of coastal States and other user States”.Footnote 3

The structure of this article is as follows. First, it describes the legal framework provided by the United Nations Convention on the Law of the SeaFootnote 4 (UNCLOS) (Section I). It then looks at some examples of the management of competing ocean uses in areas under national jurisdiction (Section II) and discusses possible co-ordination for areas beyond national jurisdiction (Section III). On the basis of the foregoing analysis, the article suggests some proposals for regulatory reform and co-operation at the international level (Section IV). Some concluding remarks are offered in Section V.

In analyzing the international legal regime for submarine cables, the present article considers both treaties and customary international law. There are several international legal instruments governing submarine cables. The principal instrument is UNCLOS, the relevant provisions of which are substantially taken from the Convention on the High Seas and the Convention on the Continental Shelf, both adopted at the Geneva Conference in 1958.Footnote 5 In addition, the Convention for the Protection of Submarine Telegraph Cables, adopted in 1884, is still in force for its parties (1884 Convention).Footnote 6 This Convention aims to protect submarine telegraph cables by, inter alia, requiring fishing and other vessels to retain a safe distance from vessels engaged in cable-laying and repair activity, and providing for punishment of wilful conduct or culpable negligence which interrupts or obstructs telegraphic communication. Some other international legal instruments are relevant as well, including the 1972 International Regulations for Preventing Collisions at SeaFootnote 7 and the 1996 Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter.Footnote 8 Outside treaty law, it is safe to say that most rules concerning submarine cables embodied in UNCLOS are now considered part of customary international law.Footnote 9

I. The Legal Framework Governing International Submarine Cables Beyond the Territorial Sea

Before analyzing the legal regime governing submarine cables, it is necessary to understand what, at a practical level, is covered by the term “submarine cables”. This, in large part, is determined by the various purposes for which submarine cables are laid. A traditional purpose of submarine cables has been to foster international communication: telegraphic and telephonic cables as well as, more recently, fibre-optic cables for the Internet.Footnote 10 Additionally, submarine cables are used to detect and communicate information on the symptoms of natural disasters such as earthquakes.Footnote 11 Other than communication-related purposes, submarine cables have been used, or are planned for use, for the delivery of energy: high-voltage power cables are used to deliver electricity to resource development platforms as well as to other states.Footnote 12 Despite these different purposes, UNCLOS does not distinguish between different types of cable in most of its provisions.Footnote 13 The use of the generic phrase “submarine cable” suggests that all types of submarine cable are subject to the relevant provisions of UNCLOS.Footnote 14

There are two ways of setting submarine cables: laying cables on the sea bed and burying them in the subsoil of the sea bed. The wording of UNCLOS (for example, “on the bed of the high seas” in Article 112) appears to expect the former method of setting cables. This does not necessarily imply that the freedom to lay submarine cables created by Article 112 may not be applied mutatis mutandis to the burial of cables. It could be argued that laying and burying are equated for the purposes of UNCLOS, unless the burial of cables is regarded as “drilling”, which the coastal state has the exclusive right to authorize and regulate.Footnote 15 The choice of installation method relates to the possible disturbances and suitability for burial, rather than any difference in purpose. The obvious advantage of burial is to protect cables from the threats of bottom trawling and anchoring. The obvious disadvantage is the possibility of environmentally adverse disturbance to the benthos.Footnote 16 Irrespective of the installation method chosen, it should be noted that Article 58(1) confers on all states the freedom, within the state's Exclusive Economic Zone (EEZ), to lay submarine cables and to pursue “internationally lawful uses” related to the freedom to lay submarine cables.

These differences in purpose and installation method may lead to the need for different types of regulatory measures. For example, high-voltage power cables are often connected to resource exploitation activities and they might, rather than generic treatment as “submarine cables”, be better regulated by measures associated with resource development.Footnote 17 Similarly, as burying cables in the subsoil would cause more adverse impacts to the benthic ecosystems than laying the cables on the sea bed, one may argue that stringent environmental impact assessment procedures should be applied to this manner of installation. In this connection, it may be useful to refer to instruments governing other kinds of sea-bed-related activities, such as the “Recommendations for the Guidance of the Contractors for the Assessment of the Possible Environmental Impacts Arising from Exploration for Polymetallic Nodules in the Area”, adopted by the International Seabed Authority (ISA), and the International Guidelines on Deep-Sea Fisheries, adopted by the Food and Agriculture Organization of the United Nations (FAO).Footnote 18

The remainder of this section analyzes the legal framework established by UNCLOS, with a particular emphasis on international submarine cables beyond the territorial sea. This focus of investigation is justified by the fact that rights and obligations concerning submarine cables are formulated in a more complex way for areas beyond the territorial sea than for areas within the outer limit of the territorial sea. Within the territorial sea, whilst foreign ships enjoy the right of innocent passage, a coastal state has sovereigntyFootnote 19 and may adopt laws and regulations in respect of the protection of submarine cables.Footnote 20 Beyond the territorial sea, submarine cables are governed by the articles in Parts V, VI, and VII of UNCLOS, which specifically refer to submarine cables, by the provisions concerning marine environmental protection in Part XII, as well as by the general provisions.Footnote 21 We look first at the UNCLOS rules for laying submarine cables in the EEZ, on the continental shelf, and in the high seas. We then turn to the rules concerning the protection of submarine cables, in particular the rules for punishment for damage to submarine cables.

A. The Right to Lay Submarine Cables and Restrictions Thereon

Before analyzing the specific provisions on submarine cables, a few words on the division of maritime zones under UNCLOS may be useful. Beyond the territorial sea, a coastal state's EEZ may extend up to 200 nautical miles from the relevant baseline of measurement (Article 57), and its continental shelf, comprising the sea bed and subsoil beyond the territorial sea, may extend up to 200 nautical miles from the relevant baseline measurement or to the outer limit of the continental margin (Article 76). Beyond the continental shelf, the sea bed and ocean floor and subsoil thereof is known as the “Area” (Article 1(1)(1)). The term “high seas” refers to areas outside the EEZ (Article 86).

Significantly, the concept of the EEZ covers the sea bed, subsoil, and superjacent waters, with the result that a regulatory overlap is created between articles governing the EEZ and articles governing the continental shelf. Article 56 of UNCLOS acknowledges this overlap by providing for complementary, rather than contradictory, treatment of the sea bed and subsoil within the EEZ and continental shelf:Footnote 22 “[t]he rights set out in [Article 56] with respect to the seabed and subsoil shall be exercised in accordance with Part VI [i.e. provisions on the continental shelf].”Footnote 23 This complementary treatment has implications for the governance of submarine cables.

In the EEZ, as noted above, all states enjoy a freedom to, inter alia, lay submarine cables and pursue other international lawful uses of the sea related to this freedom, such as those associated with the operation of submarine cables.Footnote 24 By virtue of Article 58(2), provisions concerning the high seas such as Articles 87 and 112−115 are also applicable to the EEZ.Footnote 25 The application of these articles is considered below. Furthermore, Article 79(1) confers an express entitlement on all states to lay submarine cables on the continental shelf.Footnote 26 Although activities other than laying are not explicitly mentioned, it is reasonable to assume that the performance of activities related to laying, such as maintenance and repair, is permissible under UNCLOS.Footnote 27 Similarly, route survey could be argued to fall within the category of permissible activity.Footnote 28

Under Article 79(2), a coastal state may impede the laying or maintenance of cables to the extent of its right to take reasonable measures for the exploration of the continental shelf and the exploitation of its natural resources.Footnote 29 A coastal state may also take such measures as are reasonable for the prevention, reduction, and control of pollution from pipelines.Footnote 30

Article 79(2) does not, however, explicitly cover the control of pollution from cables. It is widely recognized that cables do not cause significant pollution.Footnote 31 In line with the express wording of Article 79(2), it has been argued that the taking of “reasonable measures” for the prevention, reduction, and control of pollution relates only to pipelines, such that coastal states may not impede the laying or maintenance of submarine cables by such measures.Footnote 32

It should be recognized, however, that submarine cables and pipelines are not always laid in isolation. In congested areas, the repair of submarine cables, in particular, might lead to damage to existing submarine pipelines and consequent pollution from these pipelines, if conducted without due care. In view of such possibilities, coastal states should be entitled to take reasonable measures to prevent, reduce, and control pollution from pipelines in relation not only to the laying and repair of submarine pipelines, but also to submarine cables under Article 79(2).

In addition, it is noted that coastal states have jurisdiction to protect and preserve the marine environment in their EEZ.Footnote 33 In particular, under Article 211(5) coastal states may adopt laws and regulations for the prevention, reduction, and control of pollution from vessels.Footnote 34 Therefore, pollution from cable ships, including in connection with the laying and repairing of cables, may be regulated by the coastal state in the EEZ.Footnote 35 Further, if cable-related activities are considered to cause pollution to the marine environment arising from or in connection with sea-bed activities which are subject to the coastal state's national jurisdiction under Article 208, the coastal state's sphere of regulation should be recognized to extend to such activities.Footnote 36 It should be noted that both Articles 208 and 211(5) require states to have regard to generally accepted international rules and standards, established through bodies such as the International Maritime Organization (IMO), in the exercise of their jurisdiction.Footnote 37

Paragraph 3 of Article 79 refers to the requirement of coastal states consent to the delineation of the course for the laying of pipelines on the continental shelf. As no equivalent provision exists with regard to the laying of cables, one interpretation of this article would suggest that coastal states may not impose such a requirement on the laying of submarine cables.Footnote 38 This view is supported by the drafting history of this provision.Footnote 39 However, this does not mean that the consent of coastal states is not necessary at any time. First and foremost, as coastal states have the right to establish conditions for cables entering their territorial sea, routes for submarine cables on the continental shelf may be subject to coastal state consent if they enter the territorial sea.Footnote 40 Routing would be also affected by the route of existing cables and pipelines to the extent that “possibilities of repairing existing cables or pipelines shall not be prejudiced” by the laying of new submarine cables or pipelines.Footnote 41 In fact, in relation to pipeline and cable crossings by a new transit cable, it has been suggested that the coastal state has certain limited powers to set conditions under Article 79(2).Footnote 42 It has also been suggested that in the case of a new cable landing on the coastal state, the state has broader powers under Article 79(4) to impose conditions on the manner in which the cable is laid and maintained, although no example of coastal states using this power has been found.Footnote 43

As opposed to the above interpretation, which suggests that consent is only required from a coastal state for the routing of pipelines, not cables, on the relevant state's continental shelf, another possible interpretation of Article 79(3) is that state consent may be required for the routing of cables to the extent that such consent constitutes a “reasonable measure” for a state's exploration of its continental shelf and exploitation of its natural resources under Article 79(2).Footnote 44 In addition, as argued in relation to paragraph 2 of Article 79, since measures for the protection of the marine environment would cover submarine cables, coastal states would be able to impose the consent requirement on the delineation of submarine cables in areas where the vulnerability of marine ecosystems indicates the necessity of such a requirement.

In state practice, liberal interpretations of Article 79(3) are adopted by some coastal states such as China,Footnote 45 India,Footnote 46 Malaysia,Footnote 47 Pakistan,Footnote 48 and the Russian FederationFootnote 49 to the effect that the coastal state consent requirement is imposed on both submarine cable routes and pipeline routes.Footnote 50 Relying upon the view of the ILC, one commentator concludes that “it would seem possible to argue by analogy that Article 79, para. 2 of [UNCLOS] … also implies the right of the coastal State to delineate the course of both cables and pipelines in the EEZ”.Footnote 51

Clearly, UNCLOS does not stipulate the right of coastal states to unilaterally regulate submarine cables (or, for that matter, the right of other states or cable owners to lay cables) within areas under national jurisdiction in any absolute manner, but rather emphasizes mutual restraint. On the one hand, when exercising universal freedoms in a coastal state's EEZ, other states must have due regard to the rights and duties of the coastal state. On the other hand, in exercising its rights and performing its duties in the EEZ, the coastal state shall have due regard to the rights and duties of other states.Footnote 52 A coastal state's exercise of rights on its continental shelf must not infringe or result in any unjustifiable interference with navigation and other rights and freedoms provided to other states in UNCLOS.Footnote 53 Articles 56, 58, 78, and 79, together with other related provisions, suggest that the universal right to lay cables and the right of coastal states to regulate within their area of national jurisdiction, must be exercised in concert. Neither right is expressed to prevail over the other in cases of inconsistency. This necessitates the creation of a regulatory balance. Excessive reliance on the right to lay cables, on the one hand, taken together with Article 113's requirement that states enact laws for the punishment of cable damage (described further below), may lead to the unilateral creation of de facto exclusion zones for other internationally lawful ocean uses in the EEZ, such as EEZ fisheries.Footnote 54 The possibility of de facto exclusion is especially pertinent for internationally lawful uses related to the sea bed, given that submarine cables are permanent, or at least long-term, installations that require protection for the life of their installation. On the other hand, an abusive use of coastal state regulatory power could lead to an effective denial of the universal freedom to lay cables in areas beyond the territorial sea.

Beyond the EEZ and continental shelf, Part VII of UNCLOS establishes the regime for regulation of the high seas. Articles 87 and Articles 112 to 115 concern submarine cables.Footnote 55

Article 87 establishes the freedom of the high seas, making express mention of the freedom for all states to lay submarine cables, subject to Part VI (Continental Shelf).Footnote 56 The freedom must be exercised with due regard for the interests of other states in their exercise of the freedom of the high seas, and also with due regard for rights to perform activities in the Area.Footnote 57

Article 112(1) confirms the freedom through an express entitlement for all states to lay submarine cables on the bed of the high seas beyond the continental shelf.Footnote 58 The authoritative Virginia Commentary on UNCLOS even suggests that the expression “All States” is not to be read restrictively and the term refers to the right of states or “their nationals to lay cables”.Footnote 59 As Article 79(5) applies, due regard for existing cables must be exercised.Footnote 60

Part XV of UNCLOS establishes procedures for dispute settlement. Disputes between states in relation to the freedom of laying cables, and associated freedoms conferred by Article 58, are subject to compulsory dispute settlement procedures which entail binding decisions.Footnote 61 Flag states of cable ships and, arguably, states whose nationals are the owner of submarine cables may therefore take advantage of these dispute settlement procedures for the benefit of their nationals.Footnote 62 It should be noted, however, that the state whose interest is served by the relevant cable may not be limited to the flag state of the cable ship or the state of nationality of the cable company.

B. Protection of Submarine Cables, Including the Punishment of Damage to Submarine Cables

Part V (EEZ) and Part VI (Continental Shelf) of UNCLOS grant coastal states rights and jurisdiction in relation to a number of activities, but other states are also entitled to exercise rights in marine areas beyond the territorial sea in accordance with UNCLOS. This creates an uncertainty as to the exact measures a coastal state may take to protect submarine cables from other activity.Footnote 63 For example, concerns may arise if coastal states attempt to take an integrated approach to manage submarine cables and other ocean uses by establishing protection zones.Footnote 64

There are very few articles in UNCLOS which provide for the protection of cables beyond the territorial sea. Articles 113−115 do, however, provide for the protection of submarine cables from competing uses.Footnote 65 In particular, Article 113 requires every state to take legislative measures concerning the punishment for the breaking or damage of a submarine cable by a ship flying its flag or by a person subject to its jurisdiction.Footnote 66 By virtue of Article 58(2), this provision applies to cables in all areas beyond the territorial sea, including the EEZ. A notable aspect of Article 113, which did not feature in the previous wording on punishment in the Convention on the High Seas, is that the article applies not only to the breaking of a cable but also to conduct calculated or likely to result in such breaking or damage.Footnote 67 It appears from the text that the obligation relates to the punishment for the damage or breaking of telegraphic, telephonic, and high-voltage power cables, but not necessarily including fibre-optic cables (for the Internet).Footnote 68

It has been noted that Article 113's requirement to legislate has not been widely heeded by states.Footnote 69 Even if, for the sake of argument, legislative provisions were adopted in each state, Article 113 leaves states with significant discretion to determine the appropriate punishment for the breaking of cables, which would lead to a varying degree of severity in penalties from one state to another. State legislation that has sought to follow Article 113 (or its predecessors) has not been updated and the penalties are so low that they neither provide an incentive for authorities to prosecute nor for vessels to take minimum precautions to avoid damage to submarine cables.Footnote 70 Placing the requirement to enforce punishment, therefore, on flag states and states of nationality of an alleged offender does not always guarantee adequate punishment: these states may not necessarily have an interest in the uninterrupted operation of the affected cables.

For these reasons, punishment by other states, in particular landing states, may work more effectively. However, Article 113 only concerns the obligations of states that can establish national jurisdiction over an alleged offender, and does not make clear which other states may also exercise penal jurisdiction over the breaking or damage of submarine cables beyond the territorial sea. The remainder of this section considers which states may exercise jurisdiction over the breaking or damage of submarine cables under customary international law, with particular regard to the four widely recognized bases of jurisdiction under general international law: territoriality, nationality, the protective principle, and universal jurisdiction.Footnote 71

First, the territoriality principle (or quasi-territorial/functional principle) relates to the exercise of jurisdiction by a state within its territorial borders, including, for a coastal state, its territorial sea. In maritime areas under national jurisdiction beyond the territorial sea, namely, the EEZ or continental shelf, coastal state jurisdiction may not be presumed. Support for this view may be found in treaty law. Paragraph 1 of Article 35 of the ILC Draft Articles Concerning the Law of the Sea (ILC Draft Articles), from which UNCLOS Article 97 originated, provides that, in the event of a collision or any other incident of navigation on the high seas, penal or disciplinary proceedings may be instituted only by the flag state or the state of nationality of the accused person. The ILC held the view that the term “incident of navigation” included “damage to a submarine telegraph, telephone or high-voltage power cable”.Footnote 72 Accordingly, on this view, no state other than the flag state or the state of nationality may exercise penal jurisdiction over damage to submarine cables on the high seas. Under UNCLOS, as Article 97 is applicable to the EEZ through Article 58(2), cables within the EEZ, on the outer continental shelf, and in the Area are all subject to this provision, with the result that jurisdiction, in all areas beyond the territorial sea, is limited to the nation state of the offender. Some state practice supports this view.Footnote 73

Second, the nationality principle relates to the exercise of jurisdiction by a state over ships flying its flag or crew of its nationality onboard a ship flying another flag. In the context of cable injury, this category would certainly include ships that have damaged a cable and/or a crew member on board those ships who has done so.Footnote 74 The passive nationality principle, which allows the state of nationality of the victim of the crime to exercise jurisdiction, may be difficult to invoke with respect to submarine cables as there is no recognized system of registration for submarine cables equivalent to the register of ships maintained by flag states.Footnote 75

Third, the protective principle allows states to exercise jurisdiction over crimes affecting national security. In this respect, a possible argument could be made to justify the recognition of criminal jurisdiction over perpetrators of cable injury if the affected cable is landed in one state and the injury significantly affects the interest of that state. This principle would arguably also allow other states benefiting from telecommunications through the affected cable to exercise jurisdiction.

Fourth, the most controversial basis of jurisdiction with respect to cable damage is universal jurisdiction. Even if lacking any links in the three bases of jurisdiction outlined above, where universal jurisdiction is recognized all states are entitled to exercise jurisdiction for reasons associated with the preservation of freedoms or norms of common benefit to all states. Universal jurisdiction may be established through treaty law or customary international law. Piracy is a well-known case. In treaty law, the 1988 Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation (SUA Convention) obliges its parties to prosecute or extradite a person allegedly involved in piracy. If a captor state lacks jurisdiction on the basis of territoriality or nationality,Footnote 76 or on the basis of Article 6(2) (which establishes jurisdiction under the doctrine of passive nationality, the effects doctrine, or by reason of the offender's residency in the captor state), it must either extradite the alleged offender for prosecution elsewhere or take such measures as may be necessary to establish jurisdiction over the crimes committed by a person who is present in its territory, thereby establishing universal jurisdiction.Footnote 77

It is questionable, however, whether universal jurisdiction can be invoked as a valid basis of jurisdiction over the breaking or damage of submarine cables. Neither Article 113 of UNCLOS nor Article 27 of the Convention on the High Seas establishes universal jurisdiction.Footnote 78 Because the 1884 Convention only allows a state to exercise jurisdiction over natural persons on board a vessel flying its flag and its nationals on board a foreign ship,Footnote 79 there is a presumption that a non-flag state is not entitled to exercise jurisdiction over foreigners for the breaking of cables outside the state's own maritime zones. The wording of some state legislation is in line with this view.Footnote 80 Many commentators also maintain the view that jurisdiction is limited to flag states and the states of nationality of the perpetrator of the offence.Footnote 81

The Netherlands delegation appeared to accept this view at the 1958 Geneva Conference. At the time of introducing an amendment to insert “by a ship flying its flag or by a person subject to its jurisdiction” in ILC Draft Article 62, the delegation “remarked that … [i]t was clearly not the intention of [Article 62] to enable any State to take legislative measures against nationals of another State causing injury to a submarine cable”.Footnote 82

Nonetheless, some state practice and writings appear to support universal jurisdiction over the breaking of submarine cables.Footnote 83 For example, the wording of Japan's legislation on the punishment of submarine cable breaking or damage is so broadly formulated that it may be argued that it asserts jurisdiction over damage to submarine cables, irrespective of where the cables are located or where the damage occurs, if suspected ships or persons are found in the territory of Japan. Support for this view is found in the debate in the Japanese Diet when it deliberated on the draft Act on Punishment of Breaking or Injury of Submarine Cables etc. Incidental to Enforcement of the Provisions of the Convention on the High Seas in 1968.Footnote 84 Additionally, the Convention on Private International Law, a regional treaty concluded by Latin American states in 1928, supports this view. In Article 308, the treaty provides, among other things, that destruction or damage of submarine cables committed on the high seas shall be punished by the captor state in accordance with its penal laws.Footnote 85 The Harvard Research in International Law listed damage to submarine cables as one possible delicta juris gentium and referred to laws and resolutions supporting universal jurisdiction for its punishment.Footnote 86

Relatedly, an argument has been made that the breaking or damage of submarine cables falls under the category “piracy” and may be punished accordingly. Under UNCLOS, like the Convention on the High Seas, every state may board and inspect ships suspected of piracy on the high seas.Footnote 87 A state may arrest the persons and seize the properties on board and the courts of the state that carried out the seizure may decide upon the penalties to be imposed.Footnote 88 There are two points of relevance to our discussion on the boundaries of jurisdiction for cable-related damage. First, attacks against cable ships fall under the definition of piracy in Article 101(1)(a)(i) of UNCLOS. Second, some scholars argue that attacks directed against existing cables as such are included in the definition of piracy under UNCLOS. They consider that attacks against cables constitute “illegal acts of violence or detention”, and suggest that “any act of depredation, committed for private ends … and directed … against … property in a place outside the jurisdiction of any State” may be understood as an act of piracy subject to universal jurisdiction.Footnote 89 Given the drafting history of this provision, this interpretation is not very plausible.Footnote 90

II. Integrated Management of Competing Ocean Uses By Coastal States

The preamble to UNCLOS notes that the Convention parties are “conscious that the problems of ocean space are closely interrelated and need to be considered as a whole”.Footnote 91 Subsequent international instruments often call for an integrated approach to ocean management.Footnote 92

Apart from earthquakes, submarine cables may be affected by, for example, mining, bottom trawling, indiscriminate anchoring by ships, and offshore renewable energy generation. Obviously, intentional destruction of submarine cables will also disturb their operation.Footnote 93 With respect to the impact submarine cables may themselves have on the ocean environment, although some environmental impacts are expected, cables will generally have a lower impact on the sea bed than pipelines.Footnote 94

It should be noted that Australia and New Zealand have already taken measures to regulate bottom trawling and other potentially harmful activities within specially designated “protection zones” in order to prevent damage to submarine cables, including those beyond the territorial sea.Footnote 95 These measures also include punishment for the breaking or damage of submarine cables. Australia, in addition, has adopted legislative measures to provide for the mitigation of damage caused by cable-related activities to the marine environment. This section outlines in further detail the cable-related protection measures taken by these two countries in the Asia-Pacific region.

In 2005, Australia amended its Telecommunications Act 1997 (Cth) to insert a new Schedule 3A, “Protection of Submarine Cables” (respectively, Australian Act, and Schedule 3A). To a large extent, this schedule replaced the existing legislation on submarine cables, the Submarine Cables and Pipelines Protection Act 1963 (Cth) (1963 Australian Act).Footnote 96 In 2007, Australia declared protection zones in three areas, two off the coast of Sydney (the New South Wales Protection Zones, consisting of the Northern Protection Zone and the Southern Protection Zone), and another off the coast of Perth (the Perth Protection Zone). All protection zones are confined in territory to Australia's EEZ.Footnote 97 Specifically, the New South Wales Protection Zones extend 75 kilometres from shore in the Northern Protection Zone and 57 kilometres from shore in the Southern Protection Zone. The Perth Protection Zone extends 94.5 kilometres from shore. Although the protection zones could have been extended to the outer edge of the EEZ (or, as noted below, even further to the edge of the continental shelf), each zone ends at the distance where the depth of water reaches 2,000 metres. This is because specially established Protection Zone Advisory Committees advised that cable damage was unlikely at a depth of greater than 2,000 metres and therefore additional protection via protection zones was not required.Footnote 98

New Zealand enacted the Submarine Cables and Pipelines Protection Act in 1996 (New Zealand Act). The Submarine Cables and Pipelines Protection Order, an administrative order made under the Act in 2009, designated ten areas as protected zones.Footnote 99

The Australian and New Zealand Acts have some common characteristics, but at the same time the Australian Act is more ambitious and, for that reason, perhaps more controversial. After considering the common features of the Acts, this section moves on to discuss some of the notable provisions in the Australian Act and its operation.

The first common feature to note is that the relevant regulatory authorities in both AustraliaFootnote 100 and in New ZealandFootnote 101 are allowed to establish protection zones for submarine cables in the territorial sea and the EEZs of their respective nations. The Australian Act even allows the establishment of protection zones in “the sea above that part of the continental shelf of Australia that is beyond the limits of the exclusive economic zone”.Footnote 102 Therefore, submarine cables on the continental shelf subjacent to the high seas may be included within the cable protection zone and activities such as high seas bottom trawling may potentially be subject to Australian regulatory measures.Footnote 103

Within the protection zones, the Australian and New Zealand authorities may regulate certain activities in order to protect submarine cables. In Australia, the Australian Communications and Media Authority (ACMA) may prohibit certain activities in the protection zones, including demersal trawl, demersal gill net, sand mining, exploring for or exploiting resources other than marine species, and mining.Footnote 104 It may also restrict certain activities specified in the Act.Footnote 105 Engaging in conduct that contravenes a prohibition or restriction in the protection zone is an offence, except where the conduct is undertaken by the cable's owner or operator for the purpose of installing, maintaining, or repairing the relevant submarine cable.Footnote 106 Under the New Zealand Act, fishing or ship anchoring is prohibited in protected areas.Footnote 107

Beyond the territorial sea, in contrast to the Australian Act, the application of New Zealand's Act is limited. On the high seas, defined in the Act to include the EEZ beyond the territorial sea,Footnote 108 the Act applies to acts or omissions by a person on board, or effected by means of, a New Zealand ship, and to acts or omissions by a New Zealand citizen or a person ordinarily resident in New Zealand on board, or by means of, a foreign ship. It appears, therefore, that the regulation of activities, such as shipping, in the EEZ by non-New Zealand ships without a New Zealand citizen or resident on board does not fall within the scope of the Act. Nevertheless, it may be argued that the restrictions on activity within protected zones may, in effect, be applied to non-New Zealand ships if such restrictions form part of the conditions on entry into New Zealand ports or those for access to fishery resources in the New Zealand EEZ.

A second common feature of the Australian and New Zealand Acts is that the breaking or damage of submarine cables is an offence in both jurisdictions. In the Australian Act, engaging in conduct that, intentionally or negligently, results in damage to a submarine cable in a protection zone is an offence unless exempted under the Act.Footnote 109 A similar provision in the 1963 Australian Act extends jurisdiction to wilful or negligent conduct by Australian ships or nationals in areas outside the protection zones.Footnote 110 In the New Zealand Act, “every person” who wilfully or negligently damages a submarine cable is held to have committed an offence.Footnote 111 This offence provision, however, must be read in line with the limited application of the New Zealand Act beyond the territorial sea to New Zealand nationals, residents, and persons on board New Zealand flagged ships. As noted, the Act does not apply to acts or omissions by foreigners on board foreign flagged vessels beyond the territorial sea. By consent of the Attorney General, however, jurisdiction may be extended to offences alleged to have been committed outside the New Zealand territorial sea, by non-New Zealand vessels or by non-New Zealand citizens.Footnote 112

In addition to the protection of submarine cables, the Australian Act intends to regulate the laying of submarine cables both inside and outside the protection zones. Installing a submarine cable without a permit in protection zones as well as other Australian waters that are not coastal waters of a state or the Northern Territory is an offence under the Australian Act.Footnote 113 An important feature of the Act to note is that, in determining whether to declare a protection zone over a submarine cable that is not yet installed, ACMA must have regard to the impact of the installation on, inter alia, the environment, including whether the cable could have an adverse effect on a listed marine species or on the world heritage values of a declared World Heritage property.Footnote 114 Similarly, in deciding whether to grant a permit to install one or more submarine cables in Australian waters that are not in a protection zone and that are not coastal waters of a state or the Northern Territory (a non-protection zone installation permit), ACMA must have regard to the impact of the installation, inter alia, on the environment.Footnote 115 In other words, the legislation is aimed at not only the protection of submarine cables but also the mitigation of impacts of submarine cables on the marine environment.

Subsequent to the enactment of the Australian Act, the Australian government needed to address the issue of managing potentially conflicting uses of the oceans. Concerns arose during the establishment of the New South Wales and Perth Protection Zones because the zones were to overlap with defence practice areas declared under the Defence Force Regulations 1952 (Cth) and declaration of these areas as protection zones would restrict the performance of certain defence-related activities, including the use of an explosive or explosive device. In 2008, ACMA, the Department of Defence, and the Australian Defence Force concluded a memorandum of understanding for the purpose of protecting cables in a protection zone from defence-related activities conducted in defence practice areas which are within, or which overlap with, protection zones. The memorandum also sought to ensure that cable carriers are made aware of their obligations in relation to accessing defence practice areas that exist within protection zones.Footnote 116 Among other undertakings, the Department of Defence and the Australian Defence Force undertook that they would amend procedures for operations in defence practice areas where those operations might impact on protection zones and also amend procedures related to their submarine operations to preclude bottoming of submarines within protection zones.Footnote 117 For its part, ACMA undertook, inter alia, to advise cable carriers regarding access permits and arrangements in defence practice zones.Footnote 118

It appears that the management of submarine cables in Australia has proved successful from the perspective of an integrated management of competing activities in the oceans. In fact, when ACMA reviewed the regulation of submarine cables under the Australian Act, it found that the legislative objectives for Schedule 3A had been met; however, its report also finds some potential problems, including compliance monitoring, the limited space for new cables within the New South Wales Protection Zones, and potential inconsistency between Schedule 3A and UNCLOS.Footnote 119 Regarding the last problem, ACMA notes that the Australian government is already aware of the potential inconsistency and it recommends that the Minister for Broadband, Communications and the Digital Economy take note of the concerns raised about potential inconsistency between Schedule 3A and UNCLOS and recognize the need to remove the potential for any inconsistency.Footnote 120

III. A Co-ordinated Approach in Areas Beyond National Jurisdiction

In the sea bed beyond the outer limit of the continental shelf, a state's ability to exercise regulatory authority over submarine cables is rather limited, with the exception of legislative action concerning their breaking or damage by nationals. When submarine cables are being laid or repaired by a cable ship, there is certainly a jurisdictional link between submarine cables and the flag state of the ship concerned. Once laying or repair is completed, however, no state may claim sole jurisdiction over cables in areas beyond national jurisdiction since there is no widely recognized system of state registration equivalent to ship register maintained by flag states.Footnote 121 An indirect connection may be found with the state of nationality of the cable owner or the state whose maritime areas the cable eventually enters.

Neither does there appear to be any international organization, global or regional, competent to solely regulate the laying of submarine cables in areas beyond national jurisdiction.Footnote 122 The ISA is entrusted with the management of “activities in the Area” (i.e. activities of exploration for, and exploitation of, mineral resources in the Area), but its competence with regard to other activities is rather limited. The text of UNCLOS does not lend support to the proposition that the ISA is capable of regulating the laying of submarine cables in the Area.Footnote 123 Indeed, although the ISA has the competence to adopt rules, regulations, and procedures for the prevention, reduction, and control of pollution and other hazards to the marine environment, this competence is limited to measures to protect the marine environment from harmful effects which may arise from the exploration for and exploitation of mineral resources at or beneath the sea bed in the Area (that is, mining activities in the Area).Footnote 124 Therefore, such measures may cover cables only to the extent that they are connected to mining facilities by sending necessary energy or, presumably, by sending data for the operation of such facilities.Footnote 125

Absent a mechanism to co-ordinate competing uses under the law of the sea, it would not be surprising to see cable-related activities conflict with other activities in areas beyond national jurisdiction. While the laying of cables is governed by the regime of the high seas (including freedom to lay cables),Footnote 126 cables are attached to or buried within the Area, which is part of the common heritage of mankind.Footnote 127 The principles protecting the common heritage of mankind (other than those exclusively applicable to the exploration and exploitation of mineral resources) are of potential application to submarine cables, which creates a potential conflict between the freedoms of the high seas and the principles protecting the common heritage of mankind. For example, the freedoms of the high seas, which are not excluded from application to the Area,Footnote 128 establish the freedom to lay cables. Yet, at the same time, the common heritage of mankind principles prohibit appropriation of any part of the Area by any natural or juridical person.Footnote 129 As those who lay submarine cables are inevitably occupying a certain part of the sea bed or subsoil thereof, the potential for conflict is clear.Footnote 130 It is not difficult to speculate that the laying of cables in the Area and other activities such as mining and bottom trawling may conflict.

A basis for resolving conflicts is embedded in the UNCLOS requirement that due or reasonable regard be taken by actors exercising both high seas freedoms and activities in the Area.Footnote 131 Brown concludes that: (1) proposed cables should not be laid across areas with clear indications of sea-bed mining activities until consultations with interested parties have occurred so as to achieve reconciliation of interests; and (2) in the case of existing cables, sea-bed miners have an obligation to consult with cable owners in order to either avoid damage to the cables or, alternatively, achieve an otherwise acceptable reconciliation of interests.Footnote 132

It appears that the need for co-operation, if not co-ordination, is already clearly recognized. The ISA has concluded with the International Cable Protection Committee (ICPC) a memorandum of understanding which provides, inter alia, for consultations on issues of mutual interest, invitations to one another to be granted observer status, the exchange of information on cable routings and prospecting and exploration areas, co-operation in the collection of environmental data and information, and the exchange of standardized data and information.Footnote 133 These measures advance the prospect of effective co-operation in potentially conflicting spheres of ocean management.

With respect to the possibility of co-ordination, rather than co-operation, a potential difficulty arises from the fact that, at present, there is no international organization which assumes a co-ordinating role. In this regard, it is noted that bodies within the UN system have set an excellent precedent of co-ordination by working together in initiatives within the framework of UN-Oceans, whose current and potential participants include the Division for Ocean Affairs and the Law of the Sea (DOALOS), the FAO, the Intergovernmental Oceanographic Commission (UNESCO/IOC), the United Nations Environmental Programme (UNEP), the IMO, the Convention on Biological Diversity (CBD), the ISA, and the International Hydrographic Organization (IHO). UN-Oceans is an inter-agency co-ordination body, whose work is not intended to intrude into other organizations’ areas of competence, but, among other things, to promote the integrated management of oceans at the international level.Footnote 134 UN-Oceans has established a number of ad hoc task forces, including the Task Force on Biodiversity in Areas Beyond National Jurisdiction and the Task Force on Marine Protected Areas and Other Area-Based Management Tools. Participation in these task forces, although co-ordinated by a lead institution, is open to non-governmental organizations and other international stakeholders, with the intention being to foster collaboration around existing joint activities as well as new emerging activities. The existing or future task forces may be used as a platform for discussing a co-ordinated approach to the management of competing uses of the sea, including submarine cables in areas beyond national jurisdiction. In creating such a platform, it would be reasonable to select the ISA as a lead institution, given the ISA's existing connection with the ICPC.Footnote 135

Important to the success of a co-ordinating mechanism in the area of cable management is engagement with regional organizations. Two types of regional organizations are particularly important to an international discussion on cable management: regional fisheries management organizations or arrangements (RFMOs), and regional environmental protection regimes such as regional seas programmes. While regional seas programmes are co-ordinated by UNEP, many RFMOs are working independently of UN auspices, particularly the FAO. Bottom trawling, unless and until substantial mining activities start, would perhaps constitute the most significant threat to submarine cables in the Area. Co-operation with RFMOs is therefore essential to cable protection. Regional seas programmes, most of which are incapable of regulating fishing, may in some cases have competence to regulate other activities that may impact on the operation of submarines, including, for instance, scientific research. It is envisaged that co-operative engagement with regional organizations would likely take place between the ICPC and each regional organization through information sharing and the conferral of observer status on the ICPC. Presently, such forms of co-operation and co-ordination between regional organizations and international regulatory bodies are limited. One notable exception is found in the North-East Atlantic, an area regulated by the administrator of the Oslo and Paris Conventions for the protection of the marine environment of the North-East Atlantic (OSPAR Commission). The OSPAR Commission is exceptional in two respects: (1) it is competent to regulate a wide range of activities with a view to protecting the marine environment; and (2) it has an extensive record of co-operation with an RFMO (the North East Atlantic Fisheries Commission). The Commission has already concluded a memorandum of understanding with the ISA.Footnote 136

IV. Ways Forward: A Proposal for Reform at the International Level

Apart from effective implementation of the provisions of UNCLOS and other relevant treaties at the domestic level, action at the international level may contribute to the protection of submarine cables and the protection of other ocean uses and the marine environment from cable-related activities. This section discusses possible options for reform through multilateral treaties as well as forums for negotiation at the international level. Note that these initiatives are complementary rather than contradictory: action in one forum may facilitate processes in other forums and several initiatives may take place simultaneously.

A. Protection of Submarine Cables

Protection of submarine cables may be promoted through the revision of existing treaties. There are three potential candidates for revision: the 1884 Convention, conventions relating to the operation of the IMO, and the 1988 SUA Convention.Footnote 137

With respect, first, to the 1884 Convention, whilst it may prove beneficial to formulate a detailed set of rules in the one treaty in the hope of attracting new parties to it,Footnote 138 there are a number of limitations to the 1884 Convention which serve to render it unsuitable for use as a holistic treaty to regulate the protection of submarine cables from other ocean uses. First, there are major gaps in this Convention, including the limitation of the scope of the Convention to telegraph cables,Footnote 139 the exclusion of conduct calculated or likely to result in breaking or damage from the scope of the Convention, insufficiency of the enforcement (boarding and inspection) system in Article X, and the Convention's express exclusion of action by belligerents.Footnote 140 Second, there are too few parties to the Convention and only a handful of Asia-Pacific states are parties. It is doubtful whether such a treaty may attract new parties having an interest on this issue on the global scale. Last but not least, the Convention, negotiated in the nineteenth century, does not take into account any development in the law of the sea during the twentieth century, notably the extension of national jurisdiction seaward up to 200 nautical miles. Any agreement on a new text would be dependent upon the incorporation of coastal state regulatory authorities in areas under national jurisdiction and this would radically change the foundation on which the 1884 Convention is based. For these reasons, it is unlikely that revising the 1884 Convention would become a feasible and desirable option.

A second proposal may be to amend existing treaties at the IMO. Beyond the territorial sea, coastal states have limited jurisdiction to protect submarine cables from ships navigating in these areas. The IMO might serve as the appropriate forum through which to accord a greater regulatory capacity to states given its role as a forum for discussing the regulation of navigation for safety at sea (by, for example, revising the International Regulations for Preventing Collisions at SeaFootnote 141 with respect to cable shipsFootnote 142 or through traffic separation schemes adopted under the Convention for the Safety of Life at Sea),Footnote 143 and for environmental protection (by, for example, designating areas as particularly sensitive sea areas).

Third, interested states may wish to consider revising existing counter-terrorism conventions, such as the 1988 SUA Convention,Footnote 144 with a particular focus on revisions to ensure punishment for damage to international submarine cables.Footnote 145 On the face of it, the SUA Convention appears inapplicable to submarine cables, as the breaking of submarine cables does not fall under the categories of offences listed under Article 3(1).Footnote 146 Similarly, the 2005 Protocol to the SUA Convention does not apply to the breaking of submarine cables.Footnote 147 Therefore, it is advisable to add the act of damaging submarine cables to the list of offences under the SUA Convention.

In view of the ambiguity concerning the jurisdiction of states other than flag states or states of nationality, it is beneficial to clarify, in a multilateral treaty, the scope of states that may exercise jurisdiction, where the jurisdictional links of territoriality and/or nationality are not satisfied, over the breaking or damage of submarine cables.Footnote 148 In such an instrument, it may be worth considering inserting a clause by which a state, within whose territory an alleged offender (either the ship or those onboard the ship) has been found, shall establish and exercise jurisdiction unless extradition to another state having jurisdiction takes place. At present, as pointed out by Davenport, non-flag state enforcement jurisdiction over breaking or damage of submarine cables beyond the territorial sea is not established in UNCLOS.Footnote 149 This issue may be addressed if damage to submarine cables is included in the list of offences under the SUA Convention.Footnote 150

An issue to consider in the formulation of any treaty text on jurisdiction is whether jurisdiction should extend to both intentional and negligent breaking, or remain limited to intentional breaking. Existing international crimes conventions normally deal with intentional acts.Footnote 151 It will also be necessary to consider whether the proposed instrument should focus on a particular type of cable, such as fibre-optic cables, due to their importance to the world economy.

B. Co-ordination of Cable-Related and Other Activities

Apart from punishment for damage to submarine cables, integrated management of the oceans can be achieved through better co-ordination of cable-related and other activities beyond the territorial sea. States may wish to negotiate a new international instrument, whether global or regional, which outlines how integrated management involving submarine cables should be pursued. In any instrument of this kind, it will be useful to articulate what measures coastal states may take towards co-ordination and how the balance between the rights of coastal states and those of other states and non-state stakeholders should be achieved. As suggested by the requirement of due regard, coastal states, acting as custodians of the interests of the international community beyond their territorial sea, may not disregard the freedom of all states to lay submarine cables and pursue related internationally lawful uses of the sea.Footnote 152 A new instrument in line with this option need not necessarily take the form of a treaty. Rather, a non-binding instrument indicating how coastal states and other stakeholders, such as submarine cable owners, should behave would be sufficient.

C. The UN General Assembly and APEC

International organizations other than those mentioned above may also provide a platform for discussing the issue of co-ordination with a view to facilitating agreements among states and/or informal understandings between states and a wider range of stakeholders. Two such forums are worth mentioning here.

First, the UN General Assembly may be used as a platform to facilitate discussion on the management of submarine cables and, eventually, to launch a new initiative for reform through the adoption of an Assembly Resolution. To assist this process, the General Assembly may direct DOALOS to study and report to the Assembly on existing national legislation and the relevant practice of states and international organizations. The General Assembly has already highlighted the importance of the protection of fibre-optic submarine cables and recommended that states take protection measures and fully address issues relating to these cables in its 2010 Resolution on Oceans and the Law of the Sea.Footnote 153

While Assembly Resolutions are not legally binding on Member States, they have had significant impacts on the behaviour of states and international organizations in some cases. A good example is found in the Resolutions on fisheries, in particular on large-scale pelagic drift-net fishing on the high seasFootnote 154 and on bottom fisheries on the high seas and the protection of vulnerable marine ecosystems.Footnote 155

Second, at the regional level, the ongoing efforts within the framework of Asia-Pacific Economic Co-operation (APEC) are worth mentioning as an intergovernmental initiative to improve the management of international submarine cables. At the 38th session of its Telecommunications and Information Working Group (TEL), Australia proposed to hold a Submarine Cable Protection Information Sharing Workshop during the 39th session in March 2009. Attendees at the Information Sharing Workshop came to a consensus view that a number of activities would assist to minimize the impact of submarine communications cable outages, including raising awareness at ministerial levels of the importance of submarine communications cables and the impact and attendant cost to (APEC) economies from outages.Footnote 156

APEC's Eighth Ministerial Meeting in 2010 highlighted the importance of submarine cables as follows:

International submarine cables are an important enabler for regional economic integration. We acknowledge TEL's continued efforts to enhance the protection of submarine cables by raising awareness about the criticality of this infrastructure and consolidating information to help economies to expedite cable repairs.Footnote 157

Furthermore, a 2010−15 “Strategic Action Plan” developed by TEL and endorsed by APEC through Ministerial Declaration, identifies enhanced submarine cable protection as one of six “Key Areas for Action”. Specifically, the plan suggests that protection may be achieved “by consolidating and disseminating information that will reduce the incidence of disruption and expedite submarine cable repairs”.Footnote 158

If TEL successfully develops a new initiative for the management of submarine cables (which could, for instance, seek to harmonize the national legislation of APEC economies on cable protection, or propose the adoption of guidelines on the regulation of submarine cables and their protection), this would greatly advance the prospect of states, at the national level, updating existing or enacting new legislation for the integrated management of cables and punishment for damage to cables. At the international level, any APEC initiative would, to the extent that they are considered necessary, facilitate the development of new international legal instruments (or revision of existing instruments) on the issue of integrated management. Moreover, where the APEC initiative is adopted as a foundational driver for international discussion, the initiative may be expected to produce an Asia-Pacific regional influence on the discussion. Thus, this would be an excellent opportunity to enhance the presence of “Asian voices” in international law.

V. Conclusion

This article has reviewed the legal regime for international submarine cables beyond the territorial sea, focusing on the punishment for submarine cable breaking or damage and the management of competing ocean uses. Analysis of the international legal framework provided by UNCLOS reveals: (1) that the laying of submarine cables needs to be carried out without hampering other ocean uses; and (2) that unilateral coastal state regulation beyond the territorial sea is substantially restricted. In some states, the lack of regulatory authority is addressed, perhaps not without controversy, by the unilateral extension of coastal state regulatory powers within areas under national jurisdiction to deal with submarine cables, both for their protection and for the protection of other ocean uses and the marine environment from cable-related activities. In areas beyond national jurisdiction, the absence of a mechanism to co-ordinate regulatory activity is evident: no international organization has adopted a co-ordinating role with respect to cable management. Nevertheless, there is a potential for co-operation and co-ordination among international organizations and other actors under the framework of UN-Oceans. Regarding punishment for cable damage or breaking, this article has highlighted ambiguities concerning the exercise of penal jurisdiction by states other than flag states or states of nationality. These observations led to the proposal for reform in Section IV by way of multilateral treaties and other means at the international level. The complementary multilateral initiatives advocated in this article might eventually contribute to the better management of submarine cables in harmony with other ocean uses.

Footnotes

*

Research Associate, Netherlands Institute for the Law of the Sea (NILOS), School of Law, Utrecht University. This is a revised version of an article submitted to the Second Asian Society of International Law-National University of Singapore (NUS) Young Scholars Workshop, held at the NUS on 30 September–1 October 2010. The author wishes to express sincere gratitude to Professor Robert C. Beckman and other participants in the Workshop as well as to his colleagues at NILOS for their comments. Any possible error or omission remains the author's responsibility.

* Research Associate, Netherlands Institute for the Law of the Sea (NILOS), School of Law, Utrecht University. This is a revised version of an article submitted to the Second Asian Society of International Law-National University of Singapore (NUS) Young Scholars Workshop, held at the NUS on 30 September–1 October 2010. The author wishes to express sincere gratitude to Professor Robert C. Beckman and other participants in the Workshop as well as to his colleagues at NILOS for their comments. Any possible error or omission remains the author's responsibility.

References

1. “List of Facilities ‘Vital to US Security’ Leaked” BBC (6 December 2010), online: 〈www.bbc.co.uk/news/world-us-canada-11923766〉. (The news article includes a link to the Wikileaks website containing a copy of the diplomatic cable that indicates various submarine cables landing sites in its list.)

2. Oceans and the Law of the Sea, GA Res. 65/37A, UN Doc. A/RES/65/37A (2010), preambular para. 22.

3. Tara DAVENPORT, “Submarine Cables: Problems in Law and Practice”, Centre for International Law, National University of Singapore, Working Paper, 2010. See also MCDOUGAL, Myres Smith and BURKE, William T., The Public Order of the Oceans: A Contemporary International Law of the Sea (New Haven, CT: Yale University Press, 1962) at 781Google Scholar.

4. United Nations Convention on the Law of the Sea, 10 December 1982, 1833 U.N.T.S. 397 (entered into force 16 November 1994) [UNCLOS].

5. Convention on the High Seas, 29 April 1958, 450 U.N.T.S. 82 (entered into force 30 September 1962), arts. 2 and 26−9 [HSC]; Convention on the Continental Shelf, 29 April 1958, 499 U.N.T.S. 312 (entered into force 10 June 1964), art. 4 [CSC].

6. Convention for the Protection of Submarine Telegraph Cables, 14 March 1884, (1901) 1 Australian Treaty Series (entered into force 1 May 1888) [1884 Convention]. As at the date of writing, there are now thirty-seven State Parties to the 1884 Convention. The list of parties is available online: French Ministry of Foreign and European Affairs 〈http://www.doc.diplomatie.fr〉. Note that the list includes thirty-eight country names, displaying Austria twice. The parties from the Asia-Pacific region include: Australia, Canada, Costa Rica, Fiji, Guatemala, Japan, New Zealand, the Russian Federation, El Salvador, and the United States of America.

7. International Regulations for Preventing Collisions at Sea, attached to Convention on the International Regulations for Preventing Collisions at Sea, 20 October 1972, 1050 U.N.T.S. 18 (entered into force 15 July 1977). The Regulations stipulate various rules governing, among other things, the operation of cable ships and other ships with a view to preventing collisions.

8. Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter of 29 December 1972, 7 November 1996, IMO Doc. LC/SM 1/6 (entered into force 24 March 2006), art. 1, para. 4.2.3 [1972 London Convention] (“Dumping” does not include “abandonment in the sea of matter (e.g., cables …) placed for a purpose other than the mere disposal thereof”). Such explicit reference to cables is absent in art. III(1) of the 1972 London Convention or art. 1(1)(5) of UNCLOS.

9. Davenport, supra note 3 at 5. Regarding the customary law status of the 1884 Convention, as stated at supra note 6, it has attracted only thirty-seven parties. In addition, when the International Law Commission (ILC) considered the codification of the existing law in its work on the law of the sea, some provisions of the 1884 Convention were not incorporated in its draft articles. See Robert BECKMAN, “Submarine Cables: A Critically Important but Neglected Area of the Law of the Sea”, 7th International Conference on Legal Regimes of Sea, Air, Space, and Antarctica, Indian Society of International Law, Conference Paper, 15−17 January 2010, New Delhi, at 2−3; Davenport, supra note 3 at 4. But see American Law Institute, ReStatement (Third) of Foreign Relations Law of the United States, vol. 1 (St. Paul, MN: American Law Institute Publishers, 1987), at Section 521, comment f (“the provisions of [the 1884 Convention] have been generally accepted as customary international law”); Eric WAGNER, “Submarine Cables and Protections Provided by the Law of the Sea” (1995) 19 Marine Policy 127 at 134.

10. On the history of various types of cables, see Lionel CARTER, Douglas BURNETT, Stephen DREW, Graham MARLE, Lonnie HAGADORN, Deborah BARTLETT-MCNEIL, and Nigel IRVINE, “Submarine Cables and the Oceans: Connecting the World”, UNEP-WCMC Biodiversity Series No. 31, ICPC/UNEP/UNEP-WCMC at 11−16; Rainer LAGONI, Legal Aspects of Submarine High Voltage Direct Current (HVDC) Cables (Hamburg: Lit, 1998) at 1−2.

11. See e.g. news release of the Japan Meteorological Agency, online: Japan Meteorological Agency 〈http://www.jma.go.jp/jma/kishou/jma-magazine/0811/index.html#a〉.

12. See e.g. “Iceland's Hot Rocks may be Power Source for UK” Times Online (13 May 2007), online: 〈www.timesonline.co.uk/tol/news/uk/article1782183.ece〉. In the foreseeable future, the usage of energy cables is expected to increase because of the so-called “smart grid” to convey energy from offshore renewable energy plants. See e.g. Memorandum of Cooperation Between Okinawa and Hawaii on Clean Energy Development and Implementation, signed by the Ministry of Economy, Trade, and Industry (METI) of Japan, U.S. Department of Energy, Okinawa Prefecture, and the State of Hawaii on 17 June 2010, online: METI 〈www.meti.go.jp/english/press/data/20100617_02.html〉.

13. Exceptionally, Article 113 refers to the breaking or damage of “a submarine cable”, on the one hand, and the breaking or damage of “a submarine pipeline and high-voltage power cable”, on the other.

14. See also Douglas R. BURNETT, “International Law Considerations for Owners and Operators of Cabled and Buoy Observatories” (2006) 31 IEEE Journal of Oceanic Engineering 230 at 230, 232; Lagoni, supra note 10 at 11; McDougal and Burke, supra note 3 at 782; Satya N. NANDAN and Shabtai ROSENNE, eds., United Nations Convention on the Law of the Sea 1982: A Commentary, vol. III (The Hague: Martinus Nijhoff Publishers, 1995) at 270. See also Articles Concerning the Law of the Sea, adopted at the Eighth Session of the International Law Commission in 1956, Commentary on art. 27, para. 4 [ILC Articles on the Law of the Sea].

15. UNCLOS, supra note 4, art. 81.

16. Carter et al., supra note 10 at 33.

17. See e.g. Law No. 6 of 8 August 1996 Regarding Indonesian Waters (Indonesia), which refers to “submarine telecommunication cable” in art. 9 and to “sea cable” in general in art. 22(2), both in the context of archipelagic waters.

18. International Seabed Authority (ISA), Recommendations for the Guidance of the Contractors for the Assessment of the Possible Environmental Impacts Arising from Exploration for Polymetallic Nodules in the Area, 13 February 2002, ISA Doc. ISBA/7/LTC/1/Rev.1 (2002); UN Food and Agriculture Organization, International Guidelines for the Management of Deep-sea Fisheries in the High Seas, adopted 29 August 2008 (Rome: FAO, 2009).

19. UNCLOS, supra note 4, art. 2. The right of the coastal state to establish conditions for cables entering its territorial sea referred to in art. 79(4) attests to the extensive authority the coastal state has over cables in areas under its sovereignty.

20. UNCLOS, supra note 4, arts. 17 and 21. On existing cables in archipelagic waters, see art. 51(2).

21. It should be noted that there exist provisions on artificial islands, installations, and structures separately from those on submarine cables in UNCLOS, and no cross-reference exists, suggesting that submarine cables are not included in the former category. See Lagoni, supra note 10 at 24. The 2001 UNESCO Underwater Cultural Heritage Convention, however, uses the terms differently. UNESCO Convention on the Protection of Underwater Cultural Heritage, 2 November 2001, (2002) 48 Law of the Sea Bulletin 29 (entered into force 2 January 2009), art. 1(1)(c). This article, located after art. 1(1)(b), which states that submarine cables are not underwater cultural heritage for the purpose of the Convention, refers to “installations other than pipelines and cables”, implying that submarine cables are part of the wider category of installations. Note that there was an argument to assimilate cables to ships or bridges in the context of laws of war. Colombos examined this theory and concluded that “there appears to be no need for ‘ship’ or ‘bridge’ theories”. C. John COLOMBOS, The International Law of the Sea, 6th rev. ed. (London: Longman, 1967) at 539Google Scholar.

22. On the coastal state regulatory competence beyond the territorial sea, see Stuart KAYE, “International Measures to Protect Oil Platforms, Pipelines, and Submarine Cables from Attack” (2007) 31 Tulane Maritime Law Journal 377 at 401.

23. UNCLOS, supra note 4, art. 56(3). See also Davenport, supra note 3 at 14.

24. UNCLOS, supra note 4, art. 58(1). In the EEZ, as well as on the continental shelf and the high seas, the right to lay submarine cables is stipulated as the right of states, not of private cable owners. Lagoni argues that these provisions are not directly applicable to cable owners and that such owners carry out cable-related activities on the basis of domestic law. Lagoni, supra note 10 at 13, 15, and 18. But see Burnett, supra note 14 at 232.

25. Art. 112(2) provides that art. 79(5) also applies to cables on the bed of the high seas beyond the continental shelf.

26. UNCLOS, supra note 4, art. 79(1). In the light of other provisions of art. 79, Smits observes that “the freedom to lay submarine cables on the continental shelf applies to transit cables only”. Jan M. SMITS, Legal Aspects of Implementing International Telecommunication Links: Institutions, Regulations and Instruments (Dordrecht: Martinus Nijhoff Publishers, 1991) at 97.

27. See e.g. UNCLOS, supra note 4, arts. 58(1) and 79(2). See also Beckman, supra note 9 at 6; Davenport, supra note 3 at 15; Lagoni, supra note 10 at 18; Umberto LEANZA, “Marine Scientific Research and the Right to Lay Submarine Cables and Pipelines: Differences in Regime”, in Norman, A., GUTIÉRREZ, MARTÍNEZ, ed., Serving the Rule of International Maritime Law: Essays in Honour of Professor David Joseph Attard (London: Routledge, 2010), 129 at 131Google Scholar.

28. Beckman, supra note 9 at 8−9; Lagoni, supra note 10 at 18; Leanza, supra note 27 at 131.

29. UNCLOS, supra note 4, art. 79(2). On the drafting history, see McDougal and Burke, supra note 3 at 704−6. Beckman argues that such measures would include adopting laws and regulations on cable route surveys. Beckman, supra note 9 at 9−10. Davenport refers to some examples of regulations not related to sovereign rights to explore and exploit natural resources. Davenport, supra note 3 at 18, note 101 and its accompanying text. Lagoni argues that the sovereign rights of the coastal state for the purpose of exploring and exploiting the natural resources of the continental shelf shall prevail over the right to lay or to maintain a submarine cable; and if a submarine cable already in position prevents the exploitation of natural resources, the coastal state may even require the removal of the cable into another position. Lagoni, supra note 10 at 19; contra Douglas R. BURNETT, “The Legal Status of Out-of-Service Submarine Cables” (2004) 18 Maritime Studies 22.

30. UNCLOS, supra note 4, art. 79(2). This reference to pollution is new in UNCLOS. Compare with HSC, supra note 5, art. 26(2); CSC, supra note 5, art. 4.

31. United Nations, Oceans and the Law of the Sea, Report of the Secretary-General, UN Doc. A/59/62, 4 March 2004, para. 234; Burnett, supra note 29; Davenport, supra note 3 at 11, note 59 and its accompanying text. However, energy cables might cause pollution by discharging electricity in the case of an accident, while telecommunication cables appear to be less likely to cause such pollution. In addition, electromagnetic effects of power cables have been pointed out in the Report of the UN Secretary-General, UN Doc. A/59/62, para. 269. On the term “pollution of the marine environment”, see UNCLOS, supra note 4, art. 1(1)(4). Depending on the degree of expected impacts of cables, the requirement of environmental impact assessments in art. 206 may come into play. In view of the minimal disturbance to the sea bed, Davenport argues that “States may wish to consider avoiding extensive [environmental impact assessment] requirements so as to avoid undue delay in the laying and repair of cables”. Davenport, supra note 3 at 12.

32. Beckman, supra note 9 at 6; Davenport, supra note 3 at 16. But see Lagoni, supra note 10 at 20 (whether or not the coastal state may take reasonable measures for the prevention, reduction, and control of any environmental effects from submarine cables on its continental shelf is an open question and, if pollution or similar environmental effects can be expected from a submarine high-voltage direct current cable, a corresponding power of the coastal state can be assumed by analogy to the power to prevent pollution from pipelines).

33. UNCLOS, supra note 4, art. 56(1)(b)(iii). See also arts. 192 and 194. Davenport, while commenting that the establishment of marine protected areas beyond the territorial sea is “arguably allowed under Article 194(5)”, observes that “there is no reason why cables and marine protected areas are mutually exclusive”. Davenport, supra note 3 at 22.

34. UNCLOS, supra note 4, art. 211(5).

35. See Daniel OWEN, “Interactions Between Management of a Water Column Marine Protected Area in the High Seas of the OSPAR Maritime Area and the Exercise of Sovereign Rights Regarding Subjacent Outer Continental Shelf: A Report for WWF Germany”, February 2010, online: WWF North-East Atlantic Programme, 〈www.ngo.grida.no/wwfneap/Publication/Submissions/OSPAR2010/WWF_WG_Charlie2_Report.pdf〉, at 34 (pointing to the threat posed by operational or accidental pollution from vessels laying the cable or maintaining it). As noted earlier, the burying of cables is likely to impact the benthic ecosystems more significantly. Davenport, supra note 3 at 11.

36. UNCLOS, supra note 4, art. 208(1). See Owen, supra note 35 at 28−9 and 35 (discussing the content of the category “sea-bed activities” and whether cable laying on the continental shelf is “subject to” the coastal state's jurisdiction). In this respect, it has been suggested that even abandoning a cable does not fall within the definition of pollution. Smits, supra note 26 at 106−7.

37. Note that there is a difference in the wording of art. 208(3) (“no less effective than”) and art. 211(5) (“conforming to and giving effect to”) regarding the rules of reference. Furthermore, in the case of art. 208, both global and regional rules are mentioned as minimum standards. See also Owen, supra note 35 at 35−6.

38. See Beckman, supra note 9 at 7; Davenport, supra note 3 at 16−17; International Law Association, “Preliminary Report, Committee on Legal Issues of the Outer Continental Shelf, New Delhi Conference (2002)”, 15 January 2002, at 17; Owen, supra note 35 at 32.

39. At the UN Sea-Bed Committee, there were proposals suggesting the need for coastal state consent on the route of cables, including the Chinese proposal at the 1973 session of the Sea-Bed Committee. UN Doc. A/AC.138/SC.II/L.34, s. 3, para. 4. Subsequent proposals and drafts did not refer to such requirements. See Satya N. NANDAN and Shabtai ROSENNE, eds., United Nations Convention on the Law of the Sea 1982: A Commentary, vol. II (Dordrecht: Martinus Nijhoff Publishers, 1993) at 911−15.

40. UNCLOS, supra note 4, art. 79(4). But see Beckman, supra note 9 at 7 (arguing that an interpretation that art. 79(4) gives coastal states a right to impose additional conditions on such cables “does not seem logical”); Davenport, supra note 3 at 17 (arguing that additional conditions “would only apply to the part of the cable located in the territorial sea”). See also Owen, supra note 35 at 33. Coastal states also have jurisdiction over cables constructed or used in connection with resource development or the operations of artificial islands, installations, and structures under their jurisdiction; UNCLOS, supra note 4, art. 79(4). It seems that cables used to send electricity from offshore windmills are covered by this expression.

41. UNCLOS, supra note 4, art. 79(5).

42. Smits, supra note 26 at 107.

43. In fact, Smits argues that although UNCLOS allows coastal states to set conditions for the landing of submarine cables in their territory, few states have adopted legislation for this purpose; ibid., at 108.

44. See ILC Articles on the Law of the Sea, supra note 14, Commentary on Article 70 (“in order to avoid unjustified interference with the exploitation of the natural resources of the seabed and subsoil, [the coastal State] may impose conditions concerning the route to be followed”). See also Edward Duncan BROWN, “The Significance of a Possible EC EEZ for the Law Relating to Artificial Islands, Installations, and Structures, and to Cables and Pipelines, in the Exclusive Economic Zone” (1992) 23 Ocean Development and International Law 115 at 137; Scott COFFEN-SMOUT and Glen HERBERT, “Submarine Cables: A Challenge for Ocean Management” (2000) 24 Marine Policy 441 at 443−4; Davenport, supra note 3 at 19; McDougal and Burke, supra note 3 at 705−6.

45. Exclusive Economic Zone and Continental Shelf Act, adopted at the Third Session of the Standing Committee of the Ninth National People's Congress, 26 June 1998, art. 11 (“The laying of submarine cables and pipelines must be authorized by the competent authorities of the People's Republic of China”). See also Regulations on Management of Laying Submarine Cables and Pipelines, adopted on 20 January 1989, art. 4(3) (“Those activities [i.e. the laying of submarine cables and pipelines and their route investigations and surveys as well as other activities concerned by foreign companies, enterprises, and other economic entities or individuals] that would be conducted on the continental shelf of the People's Republic of China should be notified of [sic: notified to] the Competent Authority in advance, and the determined routes for the submarine cables and pipelines should be approved by the Competent Authority.”)

46. The Territorial Waters, Continental Shelf, Exclusive Economic Zone and other Maritime Zones Act, 1976, Act No. 80 of 28 May 1976, s. 6(7) (“Without prejudice to the provisions of sub-section (2) and subject to any measures that may be necessary for protecting the interests of India, the Central Government may not impede the laying or maintenance of submarine cables or pipelines on the continental shelf by foreign States: Provided that the consent of the Central Government shall be necessary for the delineation of the course for the laying of such cables or pipelines”.).

47. Exclusive Economic Zone Act, 1984, Act No. 311 (“An Act pertaining to the exclusive economic zone and certain aspects of the continental shelf of Malaysia and to provide for the regulations of activities in the zone and on the continental shelf and for matters connected therewith”), s. 22(1).

48. Territorial Waters and Maritime Zones Act, 1976 (22 December 1976), ss. 5(6) and 6(6).

49. Federal Law, on the Continental Shelf of the Russian Federation, adopted by the State Duma on 25 October 1995, arts. 6(20) and 22.

50. Canada also requires a licence for international submarine cables (both for those landing in Canada (i.e. a terminating cable licence) and for those connecting between places outside Canada but transiting through Canada (i.e. a through cable licence)). Telecommunications Act (S.C. 1993, c. 38), 23 June 1993, current to 30 November 2010, s. 17; International Submarine Cable Licences Regulations (SOR/98-488, 1 October 1998), current to 30 November 2010. However, as the term “Canada” is not clarified in the Act or the Regulations, it is unclear from the text of the legislation whether the licence requirement applies to cables on Canada's continental shelf which do not enter the territorial sea of Canada. On the Canadian legislation relating to cable laying, see Coffen-Smout and Herbert, supra note 44 at 444−5. For national legislation, see also Barbara KWIATKOWSKA, The 200 Mile Exclusive Economic Zone in the New Law of the Sea (Dordrecht: Martinus Nijhoff Publishers, 1989) at 240, note 66; Lagoni, supra note 10 at 25ff.

51. Kwiatkowska, supra note 50 at 217. See also Hendrik ACKER and Stephen HODGSON, “European Commission, Legal Aspects of Maritime Spatial Planning, Framework Service Contract, No. FISH/2006/09 - LOT2, Final Report to DG Maritime Affairs & Fisheries” at 55, para. 300; Kaye, supra note 22 at 399; Lagoni, supra note 10 at 7, 18, and 20−2; Leanza, supra note 27 at 131.

52. UNCLOS, supra note 4, arts. 56(2) and 58(3). In addition, it should be noted that art. 300 provides for good faith and abuse of rights. Also note that art. 59 provides for the basis for the resolution of conflicts regarding the attribution of rights and jurisdiction in the EEZ.

53. Ibid., art. 78(2). See also ibid., art. 194(4).

54. See Coffen-Smout and Herbert, supra note 44 at 445, 447−8, who advocate the concept of a corridor for all future submarine cables across the Scotian shelf off Nova Scotia, as proposed by the fishing industry, and who propose reconsideration by cable companies of demanding the industry-standard minimum separation between cables of 500 metres or greater to avoid inadvertent snags during cable repairs.

55. Art. 115 does not refer to any geographical limitation but, considering the location of this article in Part VII (High Seas), it is reasonable to assume that this article is concerned with the high seas. This assumption is supported by the fact that this article, like arts. 113 and 114, is applied to the EEZ by virtue of art. 58(2).

56. UNCLOS, supra note 4, art. 87(1).

57. Ibid., art. 87(2). For elaboration of this concept, see Edward Duncan BROWN, The International Law of the Sea, vol. I (Aldershot: Dartmouth, 1994) at 316−17; Lagoni, supra note 10 at 14−15.

58. UNCLOS, supra note 4, art. 112(1).

59. Nandan and Rosenne, eds., supra note 14 at 264. See also Smits, supra note 26 at 96.

60. UNCLOS, supra note 4, art. 112(2). The other paragraphs of art. 79 do not apply to cables on the sea bed beyond the continental shelf.

61. Ibid., art. 297(1)(a).

62. Cable companies are not entitled to the dispute settlement procedures of UNCLOS, except perhaps for the prompt release procedures for their ships and crew. See also Davenport, supra note 3 at 22 (commenting that “[a] possible solution for cable companies is for the flag State of the cable laying or repair vessel to challenge” coastal state regulations). It is interesting to note that control over cable companies and interests served by their cables are factors to consider in determining the legality of conduct by belligerents under the law of naval warfare. See Colombos, supra note 21 at 537−8.

63. Note that the coastal state may establish safety zones around artificial islands, installations, and structures under art. 60, but no reference is given to safety zones around submarine cables in art. 58 or art. 79.

64. Cf. Kaye, supra note 22 at 398 and 422−3 (who considers discussions on the issue of safety zones at the ILC, observing that it is likely that states are still reluctant over fears of harm to freedom of navigation, and that “[a]t present, coastal-State jurisdiction based on environmental protection is not applicable to protect submarine cables … Revision of this situation by empowering a coastal State would seem to be logical”). On cable protection zones, see Davenport, supra note 3 at 38; Stuart KAYE, “The Protection of Platforms, Pipelines and Submarine Cables Under Australian and New Zealand Law” in Natalie KLEIN, Joanna MOSSOP, and Donald R. ROTHWELL, eds., Maritime Security: International Law and Policy Perspectives from Australia and New Zealand (London: Routledge, 2010), 186 at 200−1.

65. Art. 114 requires states to legislate to ensure that the cost of repair for a cable broken or damaged by a person in the course of maintenance to a nearby cable, is borne by the person who caused the damage. Art. 115 requires states to legislate to ensure that ship owners are indemnified for anchors, nets, or other fishing gear sacrificed to avoid injuring a submarine cable.

66. Art. 113 reads as follows: Every State shall adopt the laws and regulations necessary to provide that the breaking or damage by a ship flying its flag or by a person subject to its jurisdiction of a submarine cable beneath the high seas done wilfully or through culpable negligence, in such a manner as to be liable to interrupt or obstruct telegraphic or telephonic communications, and similarly the breaking or damage of a submarine pipeline or high-voltage power cable, shall be a punishable offence. This provision shall apply also to conduct calculated or likely to result in such breaking or damage. However, it shall not apply to any break or damage caused by persons who acted merely with the legitimate object of saving their lives or their ships, after having taken all necessary precautions to avoid such break or damage.

67. See e.g. Wagner, supra note 9 at 136. Cf. HSC, supra note 5, art. 27.

68. But see Nandan and Rosenne, eds., supra note 14 at 270. On an evolutionary interpretation, see Section IV, infra.

69. See Beckman, supra note 9 at 14; Davenport, supra note 3 at 37. See also Wagner, supra note 9 at 134. This may cast doubt on whether this provision may be regarded as reflecting customary international law, despite the fact that a similar provision already appears in the HSC. Note that, in the preamble of the HSC, its States Parties recognize that the 1958 Geneva Conference adopted the provisions of the HSC “as generally declaratory of established principles of international law”. HSC, supra note 5.

70. Coffen-Smout and Herbert, supra note 44 at 443−4; Davenport, supra note 3 at 37; Wagner, supra note 9 at 134−5. See also Lagoni, supra note 10 at 51−2.

71. E.g. American Law Institute, supra note 9 at ss. 402 and 404; Ian BROWNLIE, Principles of Public International Law, 7th ed. (New York: Oxford University Press, 2008) at 300−7Google Scholar.

72. ILC Articles on the Law of the Sea, supra note 14, Commentary on art. 35, para. 2. Note that art. 94(7) of UNCLOS provides for co-operation between the flag state and the other state whose nationals, ships, or installations were involved or damaged. This duty concerns incidents of navigation qualified by such terms as “serious damage to ships or installations of another State or to the marine environment” and appears not to include damage to submarine cables.

73. See e.g. New Zealand's Public Act 1996 (NZ), Act No. 22 of 1996 [1996 New Zealand Act], ss. 4, 11, and 27; United States Code, Title 47, ss. 21 and 33. But see Australia's Telecommunications Act 1997 (Cth), Schedule 3A, Clauses 2 and 36−8 [Australian Telecommunications Act 1997, Schedule 3A].

74. See e.g. Australia's Submarine Cables and Pipelines Protection Act 1963 (Cth), s. 7 [1963 Australian Act]; 1996 New Zealand Act, ss. 4 and 11; United States Code, Title 47, ss. 21 and 33.

75. Davenport notes that “Requiring cables to be registered under the nationality of the owners like vessels may not be feasible because cables are usually owned by a consortium of national telecommunications carriers … and it would be difficult to determine which should be the country of registry” (emphasis in original); Davenport, supra note 3 at 22, note 120.

76. Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation, 10 March 1988, 1678 U.N.T.S. 222 (entered into force 1 March 1992) [1988 SUA Convention]. Parties shall establish jurisdiction over the offence committed against or on board a ship flying its flag, in its territory or territorial sea, or by a person who is its national; see art. 6(1).

77. Ibid., art. 6(4).

78. See NELSON, L.Dolliver, M., “Submarine Cables and Pipelines” in René-Jean DUPUY and Daniel eds., A Handbook on the New Law of the Sea (Dordrecht: Martinus Nijhoff Publishers, 1991), 977 at 982Google Scholar.

79. 1884 Convention, supra note 6, art. VIII.

80. See e.g. the legislation of Australia, New Zealand, and the United States, supra, note 73.

81. See e.g. Davenport, supra note 3 at 35, note 203 and its accompanying text, as well as at 38; McDougal and Burke, supra note 3 at 847; Nelson, supra note 78 at 982; Kaye, supra note 22 at 418−19; Lagoni, supra note 10 at 51; Daniel Patrick O'CONNELL, The International Law of the Sea, vol. II (Oxford: Clarendon Press, 1984) at 820 and 823. The Harvard Research on International Law also adopts a cautious attitude on this issue; 29 American Journal of International Law (1935), Supplement, at 569−72.

82. United Nations Conference on the Law of the Sea, Geneva, 24 February−27 April 1958, Official Records, vol. IV, at 88, online: United Nations Diplomatic Conferences 〈http://untreaty.un.org/cod/diplomaticconferences/lawofthesea-1958/2nd_Cttee_vol_IV_e.html〉. The ILC Commentary does not appear to indicate this intention, although it clearly shows that the general wording in the Draft Article 62 is not meant to require states to take legislative measures with regard to any person, but only require them to take such measures with regard to their own nationals. See ILC Articles on the Law of the Sea, supra note 14, Commentary on Article 62.

83. See, for example, RYNGAERT, Cedric, Jurisdiction in International Law (New York: Oxford University Press, 2008) at 109−110CrossRefGoogle Scholar.

84. Minutes of the Standing Committee on Judicial Affairs, House of Councillors, the National Diet of Japan, 21 May 1968, at 11−12 (where the government explains that whoever commits the crime of cable breaking or damage, wherever in the world, may be tried in Japan).

85. Bustamante Code, 13 February 1928, art. 308 (cited in 29 American Journal of International Law (1935), Supplement, at 588).

86. 29 American Journal of International Law (1935), Supplement, at 478−9 and 570. But, as stated at supra note 81, the Harvard Research eventually adopts a cautious approach to this issue.

87. UNCLOS, supra note 4, art. 110.

88. Ibid., art. 105.

89. Ibid., art. 101(a)(ii). See also Robert BECKMAN and Tara DAVENPORT, “Workshop Report”, Workshop on Submarine Cables and Law of the Sea, 14−15 December 2009, Singapore, at 27, note 19 and its accompanying text; Mick P. GREEN and Douglas R. BURNETT, “Security of International Submarine Cable Infrastructure: Time to Rethink?” in Myron H. NORDQUIST, Rüdiger WOLFROM, John Norton MOORE, and Ronán LONG, eds., Legal Challenges in Maritime Security (Leiden: Martinus Nijhoff Publishers, 2008), 557 at 578. Note that, while Beckman in principle supports this interpretation, he refers to the potential hesitation of many governments to adopt such an interpretation in practice; Beckman, supra note 9 at 15−16. See also Davenport, supra note 3 at 40.

90. See ILC Articles on the Law of the Sea, supra note 14, Commentary on Article 39, para. 4. Even if this interpretation is supported in the context of an area beyond national jurisdiction on the high seas, it is not entirely clear whether this particular provision is applicable to the EEZ by virtue of art. 58(2), for the essential element of this interpretation is that the act is committed against property “in a place outside the jurisdiction of any State”.

91. UNCLOS, supra note 4, preambular para. 3.

92. Most notably, Agenda 21: The United Nations Programme of Action from Rio, United Nations Conference on Environment and Development, UN Doc. A/CONF.151/26 (Vol. II) (1992), Chapter 17.

93. For a description of such an incident in Southeast Asian waters, see Green and Burnett, supra note 89 at 559−63. Destruction may occur during both peacetime and armed conflicts. It is submitted that different rules apply during armed conflicts since additional rules in the laws of war are applicable, as illustrated by, inter alia, the San Remo Manual on International Law Applicable to Armed Conflicts at Sea, adopted by the International Institute of Humanitarian Law on 12 June 1994, online: 〈www.icrc.org/ihl.nsf/FULL/560?OpenDocument〉. In addition, some treaties are made inapplicable to conduct by belligerents. See e.g. 1884 Convention, supra note 6, art. XV. See also Great Britain's declaration made upon signature of the 1884 Convention.

94. See Carter et al., supra note 10 at 38−48.

95. See also Malaysia's Continental Shelf Act 1966, Act No. 57 of 28 July 1966, as amended by Act No. 83 of 1972, s. 6(1)(j). It is noted that the regulatory measures dealt with in this section concern cables landing on the coastal states, rather than transit cables, because of the geographical location of Australia and New Zealand.

96. The amending Act was the Telecommunications and Other Legislation Amendment (Protection of Submarine Cables and Other Measures) Act 2005 (Cth), No. 104 of 2005.

97. Australian Communications and Media Authority [ACMA], “Submarine Telecommunications Cables” (2 February 2011), online: ACMA 〈www.acma.gov.au/WEB/STANDARD/pc=PC_100223〉.

98. ACMA, “Report on the Operation of the Submarine Cable Protection Regime: A Report on Five Years’ Operation of Schedule 3A of the Telecommunications Act 1997, the Submarine Cable Protection Regime” (September 2010), online: ACMA 〈www.acma.gov.au/webwr/_assets/main/lib311258/acma_submarine_cables_report.pdf〉, at 8, note 15.

99. The ten protected areas were already covered by the Submarine Cables and Pipelines Protection Order 1992 (NZ) as nine protected areas and one restricted area.

100. Australian Telecommunications Act 1997, Schedule 3A, supra note 73, clause 4. Clause 2 defines the term “Australian waters”. The zone is established for a cable or cables of “national significance” (clause 18). On the width of the zones, see clause 9.

101. See 1996 New Zealand Act, supra note 73, s. 12(1).

102. Australian Telecommunications Act 1997, Schedule 3A, supra note 73, clause 2.

103. Note that the existing declarations on protection zones have a provision on the application of the declaration (“This Declaration applies to the extent that it is consistent with Australia's jurisdiction under international law”). ACMA considers that this provision has the effect of qualifying the application of the administrative orders made under Schedule 3A. ACMA, supra note 98 at 23. If future declarations extending protection zones to the high seas have the same saving clause, then there will be no inconsistency with the international law of the sea.

104. Australian Telecommunications Act 1997, Schedule 3A, supra note 73, clause 10.

105. Ibid., clause 11.

106. Ibid., clause 40.

107. 1996 New Zealand Act, supra note 73, s. 13(1).

108. Ibid., s. 4(b)−(c). The term “high seas” is defined as all parts of the sea not included in the territorial sea or the internal waters (s. 2).

109. Australian Telecommunications Act 1997, Schedule 3A, supra note 73, clauses 36−8.

110. 1963 Australian Act, supra note 74, s. 7. Kaye considers that the relevant provision of the 1963 Act “closely reflects the requirements for States under Article 113 of the [UNCLOS]”; Kaye, supra note 64, at 198.

111. 1996 New Zealand Act, supra note 73, s. 11.

112. Ibid., s. 27.

113. Australian Telecommunications Act 1997, Schedule 3A, supra note 73, clause 84.

114. Ibid., clauses 20−1.

115. Ibid., clauses 71−2.

116. Memorandum of Understanding, Australian Communications and Media Authority, Commonwealth of Australia Department of Defence and Australian Defence Force, 22 December 2008, online: ACMA 〈www.acma.gov.au/webwr/_assets/main/lib100668/acma_defence_mou_submarine_cpz.pdf〉.

117. Ibid., ss. 6−7.

118. Ibid., s. 9.

119. ACMA, supra note 98 at 26. The report was presented to the Minister for Broadband, Communications and the Digital Economy in September 2010 and it was subsequently tabled in Parliament on 18 November 2010. See ACMA, “Review of Submarine Cable Regulation”, online: ACMA 〈www.acma.gov.au/WEB/STANDARD/pc=PC_311993〉.

120. ACMA, supra note 98 at 22−3. Comments submitted to ACMA's Review on this point mainly relate to (1) non-protection zone installation permits in Australian waters, and (2) installation permits for transit cables in the EEZ. While the former concern may necessitate a careful legal analysis as shown in the previous section, the latter concern appears to be largely misplaced as Schedule 3A defines “submarine cable” in s. 2(1) as laid for purposes that include connecting a place in Australia with a place outside Australia.

121. See Beckman and Davenport, supra note 89 at 16.

122. The term “areas beyond national jurisdiction” connotes both the water column of the high seas and the Area. As the issue of cables on the outer continental shelf was dealt with in the previous sections, this section focuses on cables beyond the limit of the continental shelf.

123. UNCLOS, supra note 4, art. 157(1)−(2). See also Davenport, supra note 3 at 24. Cf. Coffen-Smout and Herbert, supra note 44 at 444 and 448 (commenting that the ISA “has a mandate to coordinate and harmonize activities in the Area beyond national jurisdiction with other uses of the seabed. … [I]t is suggested that the [ISA] be mandated by the UN General Assembly to assume a regulatory function with regard to the routing of cables and their maintenance in the Area”, and suggesting the development of a “Submarine Cable Industry Code” by the ISA).

124. UNCLOS, supra note 4, art. 145. The limitation on the ISA's competence is created by the definition of “activities in the Area” in art. 1(1)(3) of UNCLOS and the definition of “resources” in art. 133 of UNCLOS.

125. Note that art. 145(a) refers to “harmful effects of such activities as drilling, dredging, excavation, disposal of waste, construction and operation or maintenance of installations, pipelines and other devices related to such activities”.

126. Notably, UNCLOS, supra note 4, art. 87.

127. See ibid., art. 136.

128. See ibid., art. 86 (“The provisions of [Part VII] apply to all parts of the sea that are not included in the exclusive economic zone, in the territorial sea or in the internal waters of a State, or in the archipelagic waters of an archipelagic State”).

129. Ibid., art. 137(1). Such a provision is absent in Part VII, including art. 89, of UNCLOS.

130. Of course, this does not mean that the laying of submarine cables in the Area is prohibited. See e.g. Alex G. OUDE ELFERINK, “The Regime of the Area: Delineating the Scope of Application of the Common Heritage Principle and Freedom of the High Seas” (2007) 22 International Journal of Marine and Coastal Law 143 at 155 (“The prohibition on appropriation is not absolute, and does not exclude activities that are explicitly permitted under the Convention”).

131. UNCLOS, supra note 4, arts. 87(2) and 147(1) and (3).

132. Brown, supra note 57 at 316−17.

133. ISA, Request for Observer Status in Accordance with Rule 82 , Paragraph 1(e), of the Rules of Procedure of the Assembly on Behalf of the International Cable Protection Committee: Note by the Secretariat, 3 March 2010, ISA Doc. ISBA/16/A/INF/1 (2010), Annex.

134. UN-Oceans, online: 〈www.oceansatlas.org/www.un-oceans.org/Index.htm〉.

135. Davenport argues that while the IMO would not be suitable as an overall international agency responsible for submarine cables, the International Telecommunications Union (ITU) may be the most appropriate international agency and efforts should be made by UN Member States to encourage the ITU to take a more active role; Davenport, supra note 3 at 41.

136. Summary Record, Meeting of the OSPAR Commission (OSPAR), Bergen, 20−24 September 2010, OSPAR 10/23/1-E, para. 12.3.

137. It is not impossible to revise UNCLOS. However, given the complex nature of the balance struck at the Third United Nations Conference on the Law of the Sea, it is not realistic to consider that states would agree to revise UNCLOS only to address the protection of submarine cables.

138. Participation in a review conference on a treaty is not necessarily reserved only for the parties to it. A good example is the Review Conference on the UN Fish Stocks Agreement. See Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, 4 August 1995, 2167 U.N.T.S. 88 (entered into force 11 December 2001), art. 36.

139. But see Kaye, supra note 22 at 396. An evolutionary interpretation of a treaty may mitigate this deficiency. See The Netherlands (PTT) and the Post Office (London) v. Nedlloyd, 17 January 1977, District Court of Rotterdam, the Netherlands, translated and reproduced in 74 International Law Reports (Cambridge: Cambridge University Press, 1988), at 215−16. This judgment was cited by the arbitral tribunal in the Iron Rhine Railway case as supporting an evolutionary interpretation. See Arbitration Regarding the Iron Rhine (“Ijzeren Rijn”) Railway between the Kingdom of Belgium and the Kingdom of the Netherlands, Award of the Arbitral Tribunal, 24 May 2005, online: Permanent Court of Arbitration 〈www.pca-cpa.org/upload/files/BE-NL%20Award%20corrected%20200905.pdf〉, at para. 80.

140. 1884 Convention, supra note 6, art. XV. On this issue, see, for example, San Remo Manual on International Law Applicable to Armed Conflicts at Sea, supra note 93, para. 37. Colombos argues that, on the question of the content of the rules of international law governing the treatment of cables in time of war, “we are met with the difficulty that there do not appear to be any which are clearly ascertainable”; Colombos, supra note 21 at 535.

141. International Regulations for Preventing Collisions at Sea, 20 October 1972, 1050 U.N.T.S. 18 (entered into force 15 July 1977).

142. See e.g. Davenport, supra note 3 at 8 and 18. Davenport also proposes a review of IMO regulations concerning the securing of anchors to protect submarine cables; see at 34.

143. International Convention for the Safety of Life at Sea, 1 November 1974, 1184 U.N.T.S. 278 (entered into force 25 May 1980). For discussions on the designation of areas to be avoided under the International Convention for the Safety of Life at Sea, see Owen, supra note 35 at 36.

144. While this article discusses this issue as part of the revision of existing treaties, amending the SUA Convention or its Protocol with a view to including the breaking or damage of submarine cables as one of the offences stipulated in the Convention or Protocol would, as a matter of formality, probably take the form of adopting a new instrument as in the case of the 2005 Protocol to the 1988 SUA Protocol: Protocol of 2005 to the Protocol for the Suppression of Unlawful Acts Against the Safety of Fixed Platforms Located on the Continental Shelf, adopted by the IMO International Conference on the Revision of the SUA Treaties, 1 November 2005, IMO Doc. LEG/CONF.15/22.

145. Note that UNCLOS recognizes that State Parties may conclude additional treaties for its implementation. It even allows State Parties to conclude a treaty modifying or suspending the operation of its provisions in accordance with the procedures stipulated therein; see UNCLOS, supra note 4, art. 311.

146. Cf. Kaye, supra note 22 at 403.

147. Ibid., at 419−20. The 1988 SUA Protocol and the Protocol thereto may be applicable to high-voltage power cables connected to platforms; see Protocol for the Suppression of Unlawful Acts Against the Safety of Fixed Platforms Located on the Continental Shelf, 10 March 1988, 1678 U.N.T.S. 304 (entered into force 1 March 1992), art. 1(3).

148. Cf. Kaye, supra note 22 at 422.

149. Davenport, supra note 3 at 39.

150. On this issue, Davenport comments that “States are unlikely to extend rights to board and rights to arrest under [UNCLOS] to vessels engaging in damage to submarine cables”, and proposes joint or co-ordinated patrols in areas where submarine cables have been laid so as to prevent any attacks; Davenport, supra note 3 at 41.

151. See also Beckman, supra note 9 at 14.

152. Davenport refers to the mutual obligations of coastal states and cable companies to take “due regard” when exercising their respective rights and observes that “cable companies must consult with coastal States on route selection and must notify (but not be required to seek consent from) coastal States on their laying and repair activities and coastal States must similarly keep cable companies informed on other activities that may impact cable operations”; Davenport, supra note 3 at 20−1.

153. GA Res. 65/37A, supra note 2, preambular para. 22 and operative para. 121.

154. Large-Scale Pelagic Drift-net Fishing and its Impact on the Living Marine Resources of the World's Oceans and Seas, GA Res. 44/225, UN Doc. A/RES/44/225 (1989); Large-Scale Pelagic Drift-net Fishing and its Impact on the Living Marine Resources of the World's Oceans and Seas, GA Res. 46/215, UN Doc. A/RES/46/215 (1991).

155. Sustainable Fisheries, Including Through the 1995 Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, and Related Instruments, GA Res. 61/105, UN Doc. A/RES/61/105 (2006) (paras. 80−91); Sustainable Fisheries, Including Through the 1995 Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, and Related Instruments, GA Res. 64/72, UN Doc. A/RES/64/72 (2009), paras. 112−30.

156. Report of the Outcomes of the Submarine Cable Information Sharing Workshop, Report of the Security and Prosperity Steering Group, Asia-Pacific Economic Cooperation, APEC Doc. 2009/TEL40/SPSG/010 (2009).

157. “Okinawa Declaration: ICT as an Engine for New Socio-economic Growth”, 2010 APEC Telecommunications and Information Industry Ministerial Meeting (TELMIN 8), Okinawa, Japan, 30−31 October 2010, para. 26. For the Statement in the previous session of the Ministerial Meeting, see “Bangkok Declaration: Digital Prosperity: Turning Challenges into Achievement”, adopted at the 2008 APEC Ministerial Meeting on the Telecommunications and Information Industry (TELMIN 7), Bangkok, Thailand, 23−25 April 2008, paras. 16 and 20.

158. “APEC TEL Strategic Action Plan: 2010−2015”, 2010 APEC Telecommunications and Information Industry Ministerial Meeting (TELMIN 8), 30−31 October 2010, at 5.