Bilateral treaties are insufficient to address issues with underseas cables occurring on the high seas

As previously stated,⁶¹ [bilateral investment treaties] BITs can only partially solve the problems currently arising in the regime applicable to submarine cables. That is the reason why BITs have been referred to in this article as a “complementary” regime rather than a “substitutive” one. In fact, there are certain areas in which BITs cannot represent a solution. Reference is made in particular to the problem of intentional acts by terrorists aimed at damaging the cables, and issues related to cables laid down outside the sovereign areas of States (i.e. the High Seas). With regard to the former, the matter would be better addressed by international criminal law. BITs can establish the liability of the host State in case due diligence is not exercised in the protection of the cables. However, international terrorism is something beyond the control of States, and definitely something that can hardly be faced just by applying the ‘due diligence’ required by the standards of protection of investment law. With regard to the lay of submarine cables outside the sovereignty of States, it is evident that the lay of submarine cables in these areas cannot be regulated by BITs. Host States cannot be subject to obligations on areas on which they lack sovereignty.