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Mensah, Thomas A. --- "The Rights of Submarine Cable Owners and Coastal States Under the United Nations Convention on the Law of the Sea" [2000] MarStudies 24; (2000) 114 Maritime Studies 10

• The Rights of Submarine Cable Owners and Coastal States Under the United Nations Convention on the Law of the Sea

The Rights of Submarine Cable Owners and Coastal States Under the United Nations Convention on the Law of the Sea

Thomas A. Mensah^[1]

The importance of efficient and high-speed international telecommunications cannot be overemphasised in this era of the information superhighway. Since the invention of the telegraph, and the subsequent development of the telephone, telecommunications have played a key role in facilitating international commercial intercourse as well as social and cultural contacts across the seas and oceans. They also provide maritime and naval powers with efficient and secure means of communications whose strategic importance has increased with the extension of the geographical scope of fleet operations. Before the advent of satellite radio technology, telegraphic and telephonic communication depended almost exclusively on cable connections; and inter-continental transmissions, therefore, required the use of submarine as well as terrestrial cables. The era of submarine transmission cables was inaugurated in 1850 with the laying of the first telegraph cables between Dover in England and Calais in France. The need for more extensive cable connections increased with the arrival of long-distance international telephone services. The twentieth century saw great strides in the development of cable types and cable-transmission techniques that could cope with the new demands of the industry. In particular, the introduction of fibre optic technology made it possible to produce submarine cables with greatly enhanced transmission quality, high reliability and the ability to ensure confidentiality for messages. This has reinforced the important role of submarine cables in international telecommunications. Today cables provide the basis of the international information superhighway which connects the economies, peoples and cultures of the world in a way that was hardly conceivable only two decades ago.

To meet the ever-increasing need for better and faster telecommunications, extended and highly sophisticated fibre-optic submarine cable networks have been constructed across the oceans and around the continents. In addition to the major ‘long-haul’ systems linking the continents, high-capacity ‘festoon’ systems are now being deployed along many coastlines to provide a relatively simple and inexpensive access to state-of-the-art communications infrastructure, especially for developing countries.

In its continuing efforts to improve the efficiency and security of the submarine cable systems, the telecommunications industry has to contend with a number of difficult problems. Two of these deserve special mention. The first relates to the ability of cable operators to route and lay submarine cables in the most efficient way, without having to contend with undue hindrance or interference from Governments. This is only possible if there is general recognition of the right to lay and maintain submarine cables in the areas of the sea that are most suitable for the purpose.

The second concern of cable owners is to ensure effective protection of submarine cables against damage, either from natural causes or from the activities of other users of the sea. The two problems are closely inter-related. International recognition of the right to lay and maintain submarine cables is necessary to enable the industry to deploy cables in a way that extends the benefits of efficient telecommunications to all countries at reasonable cost. But international recognition of the right to lay submarine cables is not of much help to operators if the governments concerned are not also willing and able to take the measures necessary to ensure that cables, once laid, will be adequately protected against hazards to which they are exposed in all areas of the sea. These hazards are especially serious in the shallow areas of the continental shelf and the territorial sea, where the networks begin and end. In these areas the major threat to submarine cables is from ‘external aggression’, that is, hazards that emanate from outside the cables. Some of these hazards result from natural phenomena, such as submarine landslides, abrasion from current or wave action, ice scour and fish bites. But by far the greater proportion of damage to cables is due to non-natural causes. Of these the major culprits are fisheries activities, especially trawl fishing and shellfish dredging. Danger to submarine cables from these activities can only be prevented by the Coastal State, through the adoption of laws and regulations to protect submarine cables that lie within its jurisdiction or that are at risk from the activities of persons subject to its laws. Such laws and regulations must be coupled with appropriate administrative and judicial measures of implementation and enforcement. Thus, effective protection of submarine cables requires not merely the recognition of the legal right to lay and maintain cables in the areas suitable for such activity but also the adoption and application of legislative and related measures that are sufficient to ensure maximum protection of the cables against damage.

The right to lay submarine cables in the high seas and the continental shelf is now well recognised by international law. The 1958 Geneva Convention on the High Seas asserted the right of all States (and by extension, their nationals) to lay and operate submarine cables in the high seas and on the continental shelf. This ‘high seas freedom’ has been further reinforced by the 1982 United Nations Convention on the Law of the Sea which affirms the right of all States to lay submarine cables in the high seas (Article 87), on the continental shelf (Article 79) and on the bed of the high seas beyond the continental shelf (Article 112). The Convention also retains the freedom in the Exclusive Economic Zone, the new maritime zone between the territorial sea and the high seas proper. This new zone is not part of the high seas, and Coastal States enjoy extensive ‘sovereign rights’ over it, especially with regard to the use and management of living marine resources and the protection and preservation of the marine environment. However, the Convention provides, in Article 58, that all States enjoy the freedom to lay submarine cables in that zone. In all these areas the freedom to lay submarine cables is subject to one important qualification. Article 79, paragraph 5, of the Convention states that, in exercising their right to lay submarine cables, States ‘shall have due regard to cables or pipelines already in position’. In particular, care is to be taken to ensure that ‘possibilities of repairing existing cables or pipelines shall not be prejudiced’. This requirement applies equally to submarine cables on the continental shelf and in the Exclusive Economic Zone.

Furthermore, the general right to lay submarine cables does not apply in other areas of the sea. There is no such right in the territorial sea or in ‘archipelagic waters’. In both areas the laying of submarine cables is subject to the approval of the Coastal State, on such terms and conditions as it may prescribe. In archipelagic waters the only protection given to submarine cables is in Article 51 which requires Coastal States to respect existing submarine cables laid by other States and passing through their waters. In addition they should permit the maintenance and replacement of such cables, upon receiving due notice of their location and the intention to repair or replace them.

These exceptions mean that the general right to lay submarine cables does not apply to all the areas of the sea in which cables may be laid. As noted above, submarine cables may only be laid in the territorial sea and in archipelagic waters with the agreement of the Coastal State and subject to conditions imposed by it. In this connection it is important to note that the 1982 Convention permits Coastal States to extend their territorial sea from the traditional three nautical miles to a maximum breadth of 12 nautical miles. The Convention also recognises the new and potentially extensive maritime zone of archipelagic waters in which Coastal States exercise powers similar to those available to them in the territorial sea. These innovations result in a significant increase in the part of ocean space in which the general right to lay submarine cables does not apply. It is also pertinent that the extended territorial sea and archipelagic waters are the areas most suitable for the increasingly important ‘festoon’ cable systems that operate in relatively shallow waters. For the most part, these systems operate as parts of networks linking a number of neighbouring countries. Such networks are most feasible, technically and economically, if all or most of the Coastal States concerned agree to permit the routing of cables through their territorial seas or archipelagic waters, as the case may be. Hence, the refusal by one or more of the States can seriously compromise the viability of a proposed system.

Another difficulty that cable operators may face is uncertainty regarding the law that is applicable to their operations in specific parts of the territorial sea or archipelagic waters. The problem may be particularly acute in States with federal constitutions under which rights and powers in the territorial sea may be shared between the central national government, on the one hand, and the constituent federal States or provisional authorities, on the other hand. Where this is the case, approval from the central government authorities may not be sufficient to enable a cable operator to lay submarine cables in certain parts of the territorial sea. This is because, in some of these countries, such as the United States and Australia, federal law may not be able to override the rights of state or provincial authorities with regard to certain activities in the territorial sea, including the regulations of submarine cable operations. This may be true even of federal laws enacted to implement international conventions that have been duly ratified by the national government. Thus, in the United States, some States have claimed the right under the Constitution to regulate the laying and operation of submarine cables within a territorial sea limit of three nautical miles, in spite of the fact that the Federal Government has proclaimed a territorial sea of 12 nautical miles. In such a situation there could be controversy as to which laws (federal or state) are applicable in particular parts of the territorial sea, and there may be competing claims to the right to authorise or regulate the laying of submarine cables in those areas. Similar uncertainties may arise in archipelagic waters of States with federal constitutions. In all such situations, potential submarine cable operators could face lengthy delays and even expensive litigation. This will only be avoided if the competing authorities can be persuaded either to reach agreement on the sharing of jurisdiction or, failing that, to establish common requirements to be met by those who wish to lay and operate submarine cables in the areas of contested jurisdiction.

But, perhaps the most serious concern of owners and operators of submarine cable systems is the safety of submarine cables after they have been laid. As noted earlier most of the hazards posed to submarine cables result from human activity. It is possible for owners of the cables to take measures to prevent or at least minimise the impact of some of these hazards, and much has been done over the years to make submarine cables less vulnerable to natural and man-made hazards. For example, careful route planning to avoid potential conflicts with current and projected activities and mechanical methods, such as additional cable armouring and deep burial of cables into the seabed, have led to significant reductions in the frequency and seriousness of damage to submarine cables.

But the success of these self-help measures depends, to a great extent, on the existence of legislation that does not only prohibit wilful and negligent damage to cables but also affords to cable owners and operators the possibility of claiming compensation from those who cause damage to cables or interfere with their operation. Indeed, such legislation is required under existing international agreements. For example, the International Convention for the Protection of Submarine Cables (the Cable Convention) of 1884 provides that owners of submarine cables may recover compensation under civil law for damage to cables caused by intentional or negligent acts and omissions of other persons. In addition, States Parties to the Convention are required to enact suitable legislation to enforce the penal provisions of the Convention. However, the 1884 Convention has not succeeded in giving the protection that it promises to submarine cables. This is because of two major defects in the Convention. The first defect is the absence of provisions that permit state authorities or cable operators to take measures to prevent imminent damage to cables. Although the Convention provides that wilful and negligent damage to cables is a punishable offence, it does not give cable owners the right to take action to prevent activity that is likely to cause damage to their cables. Thus, while the Convention permits the establishment of exclusion zones around ships when they are laying cables, and around buoys deployed to mark damaged cables, it does not give the power to either the Coastal State or the cable owner to require vessels to keep a minimum distance from a cable that has already been laid. Without such power fishing vessels and other operators cannot be prevented from working too close to cables, even where there is clear evidence that this can cause serious damage to the cables. Action can only be taken if a cable is actually damaged. Another shortcoming of the Convention is that it does not specify minimum penalties to be imposed by national law for violations of its provisions. It is left to the States Parties to the Convention to determine the level of sanctions for such violations. In the event, violations of the Convention have been treated as misdemeanours in the laws of many States. As a result, the penalties prescribed for infringements have not acted as a credible deterrent to those whose activities pose a threat to submarine cables.

The Geneva Convention on the High Seas of 1958 reiterated and amplified the provisions of the 1884 Cable Convention. It declared the right of all States to lay submarine cables in the high seas and, subject to reasonable measures, also on the continental shelf. The provisions of the Convention apply not just to telegraph cables, as did the 1884 Convention: they apply also to telephone and power cables. However, like the 1884 Convention, the 1958 High Seas Convention does not have provisions that can be invoked to prevent activities that present clear risk of damage to cables. Hence, cable owners do not have the right under the Convention to take action against potential violators of the Convention unless a cable has actually been damaged.

The provisions of the 1958 Geneva Convention have been incorporated in the 1982 United Nations Convention on the Law of the Sea. The 1982 Convention goes much further to ensure protection for submarine cables. Like the 1884 and 1958 Conventions, the 1982 Convention requires States Parties to adopt laws and regulations necessary to protect submarine cables. Specifically Article 113 of the Convention requires every State Party to adopt laws and regulations to provide that

the breaking or injury 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 ... shall be a punishable offence.

As a significant addition, the Article states that

this provision shall apply also to conduct calculated or likely to result in such breaking or injury.

However, these prohibitions do not apply to cases where

the break or injury to a cable is 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 injury.

Injury or break to a cable in such a case is not punishable under the Convention.

The 1982 Convention also contains provisions on the obligations of cable owners. Article 114 of the 1982 Convention provides that owners of submarine cables will be liable for damage caused by them to other cables or pipelines; and Article 115 calls for the enactment of legislation to ensure that owners of ships who sacrifice anchor, net or other fishing gear in order to avoid injury to a submarine cable shall be entitled to indemnity from the owner of the cable, provided that certain conditions are met.

With regard to protection of cables, the 1982 Convention represents a significant improvement on the position under the earlier international agreements. It contains much clearer provisions on the power and obligation of States Parties to adopt laws and regulations to prevent wilful or negligent damage to cables. And, for the first time, it makes it possible for action to be taken to prevent activities that are calculated or likely to result in damage to cables. If properly and uniformly applied by all the States with jurisdiction over submarine cables or activities that can cause damage to cables, the Convention can go a long way towards securing the necessary protection for submarine cables and their efficient operation.

But the adoption of the Convention will not, by itself, suffice to give the needed protection to submarine cable systems. Like most international treaties, the Convention is not self-executing. It requires effective implementation at both the national and international levels. For its regime to operate as expected three important conditions have to be fulfilled. First, the Convention needs to be ratified by the majority of countries in which measures for the protection of cables are required. Secondly, the States which ratify the Convention must be ready and able to enact the legislation required under the Convention, and also ensure that the legislation they adopt contains sanctions sufficient to influence the conduct of those whose acts or omissions are likely to cause damage to submarine cables. Finally, States Parties must put in place appropriate mechanisms for the effective enforcement of their laws and regulations. In particular, law enforcement authorities should have at their disposal the means not only to apply penal sanctions for violations of the law but also to take measures to prevent activity that is likely to cause damage to submarine cables. Similarly, owners of submarine cables should be able to take action to prevent activity that is likely to damage their cables and to seek redress at civil law for damage that is actually caused to their cables.

The 1982 Convention has now been ratified by well over 70 per cent of the States of the world. It is true that a number of important maritime States have not yet ratified it; but many of them have publicly stated that they consider that most of the Convention’s provisions, including those dealing with the laying of submarine cables, are declaratory of customary international law. Accordingly, it can safely be assumed that these States will have no difficulty in enacting national laws embodying the provisions of the Convention.

The more important question, therefore, is whether States Parties to the Convention, as well as non-parties, will adopt the laws and regulations that offer effective protection to submarine cables. As stated above, national laws and regulations for this purpose will only be effective if they offer realistic opportunities for state law enforcement authorities, and other persons affected or likely to be affected by violations, to take measures to prevent foreseeable damage or to obtain compensation for damage caused to submarine cables. More crucially, the sanctions and other redress prescribed by the law must be such that they can influence the conduct of would-be violators. In other words, the sanctions for violations should be severe enough to act as a deterrent to persons whose actions pose danger to submarine cables; and they must also provide an incentive to law enforcement officials who have the discretion to decide whether or not to prosecute specific violations of the law. If the sanctions for violations are not sufficiently heavy, potential violators may conclude that the benefits of violations will compensate for any potential sanctions in the event of prosecution. By the same token, law enforcement officials would be discouraged from taking enforcement measures if they were to feel that the penalties likely to be imposed for violations would not justify the time, effort and expense to be incurred in the detection, apprehension and prosecution of offenders. For example, it has been noted that there has not been a single criminal prosecution for wilful or negligent injury to submarine cables under United States federal law since that law was adopted well over 100 years ago; and the explanation suggested for this is that the penalties provided by the law are so light that law-enforcement agencies have not considered it worth their while to bring prosecutions. The punishment under the United States legislation for wilful injury to a submarine cable is a fine of $5000 or imprisonment for two years. For negligent injury the maximum fine is $500 or three months imprisonment. The situation is more or less the same in other maritime States. Indeed, in some countries, there may be no legislation at all on the protection of cables and, therefore, no prescribed penalties for causing injury to cables. Furthermore legislation required by the 1982 Convention may not provide adequate protection to submarine cables, for the Convention only obliges States to adopt legislation to protect submarine cables ‘beneath the high seas’. This would seem to suggest that a Coastal State is not in fact obliged by the Convention to adopt legislation for the protection of cables that lie outside the high seas, such as in the territorial sea and, arguably, in the Exclusive Economic Zone. As noted earlier, the need for protection for cables is the same, and possibly greater, in the territorial sea and the Exclusive Economic Zone. Hence legislation which applies only to submarine cables beneath the high seas will not give the necessary protection to all the submarine cables that need to be protected. Effective protection for submarine cables can only be assured if States feel obliged to adopt suitable legislative and administrative measures that apply to submarine cables in all areas of the sea where cables are deployed.

The question then is what can be done to ensure that the States discharge their obligations under the Law of the Sea Convention and other applicable international agreements? Under international law, a State which fails to discharge its obligations under international law may be called to account by other States whose interests are adversely affected by the failure. On the basis of that principle, it might be supposed that a State Party to the 1884 Cable Convention, or the 1958 High Seas Convention, or the 1982 Law of the Sea Convention could bring an action before a competent international judicial body against another State Party for failure by the latter State to adopt and implement laws and regulations to protect submarine cables within its jurisdiction, if such failure results in damage to submarine cables belonging to the complaining State or its nationals.

The 1982 Convention on the Law of the Sea provides for the settlement of disputes through dispute settlement mechanisms designated by the Convention. One of these mechanisms is the International Tribunal for the Law of the Sea. Others are the International Court of Justice, arbitral tribunals to be constituted under Annex VII to the Convention and special arbitral tribunals to be constituted under Annex VIII. The Convention gives to the International Tribunal for the Law of the Sea (as well as the International Court of Justice and arbitral tribunals constituted under Annex VII to the Convention) competence to deal with disputes concerning the interpretation or application of provisions of the Convention. Such disputes include disagreements regarding provisions of the Convention dealing with the laying and protection of submarine cables. Article 297 of the Convention states that one of the disputes that may be referred to the Tribunal is where

it is alleged that a coastal state has acted in contravention of the provisions of the Convention in regard to the freedoms and rights (regarding) the laying of submarine cables and pipelines…

Consequently, a State Party to the Convention can bring action against another State Party where the complaining State alleges that the other State Party has failed to discharge its obligation under the Convention to adopt and enforce appropriate laws to protect submarine cables. However, recourse to the Tribunal or other judicial body may not be easy or even possible. This is because, with the exception of a few special cases, the Tribunal or other judicial body will only be competent to deal with a dispute if all the States involved in the dispute have accepted its jurisdiction. Thus action can be only brought against a State Party before the Tribunal or the ICJ if both that State and the complaining State have accepted the jurisdiction of the Tribunal or the Court – either for all disputes between them or for the purposes of the particular dispute.

But even for States Parties that have accepted the jurisdiction of the Tribunal or the Court, it is doubtful that recourse to judicial proceedings would provide a viable means for enforcing the provisions of the Convention on the protection of submarine cables. In the first place, a claim alleging non-compliance with provisions of the Convention cannot be brought before either the Tribunal or the Court by the owner or operator of a submarine cable. Pursuant to its Statute, the Court cannot deal with applications from entities other than States. And, although the Convention provides that non-state entities may appear before the Tribunal (and arbitral tribunals under Annexes VII and VIII to the Convention) in certain cases, that provision cannot permit the owner or operator of a submarine cable to bring a claim before the Tribunal in his own name against a Coastal State for non-compliance with the Convention’s provisions on the protection of submarine cables. Such a claim can only be submitted to the Tribunal by another State Party. Considering the rather uncertain content of the obligations imposed on States in relation to cable protection, it does not appear realistic to expect that many States Parties will consider it advisable or useful to institute international judicial proceedings against other States to enforce such obligations, especially where the claim is based on the alleged failure of the State to adopt legislation to protect submarine cables in its territorial sea or exclusive economic zone. In those areas it is not clear that the Convention imposes any obligations at all on the Coastal State. In any case, it is not at all certain that the Tribunal or other court will find it possible or appropriate to specify precisely the nature and scope of legislation that a Coastal State must adopt in order to comply with the Convention. We may conclude, therefore, that recourse to the Tribunal is unlikely to provide an effective means to get States to discharge their obligations regarding protection of submarine cables.

What then can the owners and operators do to ensure that all relevant States take the necessary measures to increase protection for submarine cables? It must be noted that considerable efforts have already been made by cable operators, individually and through the ICPC, to secure implementation of the relevant international conventions by States and governments all over the world. The steps taken so far include action to publicise information on cable routes to ensure that these will be incorporated into navigational charts and Notices to Mariners. Then there have been educational programs, such as the issue and distribution of Cable Warning Charts and Cable Awareness Charts. These measures have been extremely useful and should be continued and expanded to cover many more countries and areas. The same is true of the other precautionary measures taken by the members of the International Cable Protection Committee (ICPC), such as cable patrol and surveillance programs.

But, as observed earlier, the ability of the industry to use the law to protect cables depends on the existence of the necessary legislation in all relevant States. Such legislation should have both penal provisions, with penalties that are adequate to deter violations, as well as provisions that make it possible for cable owners to obtain adequate compensation from those who cause damage to their cables in violation of the law. Without such laws the many and laudable efforts of the ICPC and its members cannot produce the results they seek. It is, therefore, the development of these laws at the national level to which the industry should devote further attention and effort in the future. In this regard, the ICPC may find it useful to consider possible means to encourage and, where appropriate, assist governments to review their laws, with a view to updating existing laws or adopting new ones to discharge their commitments under international law. Where appropriate, these efforts should include action to encourage countries that have not ratified existing conventions to do so. In many cases failure to ratify conventions may be due to lack of coordination in policy and action between different ministries or departments. In other cases the failure may be the result of administrative and bureaucratic inertia. Whatever the reasons for inaction may be in any particular country, it is possible that some prodding from outside, especially if accompanied by the offer of assistance in the form of technical advice or financial resources, can serve as a potent stimulus for action. The ICPC may, therefore, wish to give consideration to approaches of this kind in those countries where research shows that such action might be useful. Provided that they are carefully and diplomatically handled, such approaches could lead to constructive and mutually beneficial collaboration between submarine cable operators and governments, particularly governments in developing countries.

It should however, be noted that direct approaches to governments from commercial concerns or multinational companies may not be politically advisable or even welcome in some countries and regions of the world. For that reason, a better strategy might be to seek the cooperation of competent international organisations, especially those within the United Nations system. Of these, the most obvious appear to be the International Telecommunications Union (ITU), the International Maritime Organization (IMO) and the Food and Agriculture Organization (FAO). Also worth mention are the Inter-governmental Oceanographic Commission (IOC) of UNESCO and the International Hydrographic Organization (IHO). Another body whose involvement could be helpful is the International Seabed Authority, the body established by the Convention on Law of the Sea to exercise authority and control over activities in the international seabed area beyond national jurisdiction. Many of these organisations develop uniform regulations and recommended practices that are implemented by individual governments through national legislation. They also operate programs for the provision of advice and assistance to governments that do not have the necessary expertise and resources to implement applicable international regulations and standards. In addition most of them cooperate with appropriate non-governmental organisations, including industry associations similar to the ICPC, in developing international schemes and in promoting their implementation at the national level. It is, of course, not possible to predict how any of these organisations will react to a proposal from the ICPC to collaborate in promoting the development of national legislation to protect submarine cables. However, some of them will probably react favourably to such a proposal for collaboration. And there is reason to believe that any schemes that result from cooperation with them will be acceptable to many governments which might not have been enthusiastic about collaborating directly with the ICPC or any of its members. It would appear, therefore, that cooperation with these organisations would give the ICPC a useful means to encourage the adoption of suitable laws and regulations for the protection of submarine cables in countries where such laws do not currently exist. It will also be a very effective way to ensure a reasonable measure of uniformity in the laws adopted around the world. There can be no guarantee that an approach to any of these bodies will succeed, but such a move deserves serious consideration, not as a substitute to the past and current efforts of the ICPC, but rather as a supplement to them.

^[1] Judge, International Tribunal for the Law of the Sea. Edited version of a presentation to the Plenary Meeting of the International Cable Protection Committee (ICPC) held in Copenhagen in May 2000. The views in the paper are those of the author. They may not in any way be attributed to the Tribunal.