Underseas Cables
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The 1982 Convention provides this modern legal compass. In ten specific articles6, the Convention provides a comprehensive international legal regime for submarine cables and pipelines in territorial seas, archipelagic waters, the Exclusive Economic Zones ("EEZ"), upon the continental shelves, and on the high seas.
Critics of the 1982 Convention argue that existing customary international law should suffice. For cables this is simply not the case for several reasons. Foremost among these reasons is that the Convention explicitly goes beyond preexisting international law in crucial areas of submarine cable installation, maintenance, and operations and provides binding dispute resolution to ensure proper enforcement of these new obligations, but only for countries that are parties to the Convention.
This express language in the 1982 Convention reflects the effort of dedicated visionaries in the telecommunication industry who urged Ambassador Richardson and the U.S. Delegation negotiating the Convention to include language that would (1) include within the freedom to lay and repair cables the operational requirements for modern fiber optic systems, including marine route surveys7, burial8, and maintenance, and (2) at the same time prevent coastal nations in their EEZ or upon their continental shelf from restricting these vital activities9.
Directly stated, U.S. telecom companies are hurt and their leadership in this vital sector is diminished without the Convention. The Convention is the key to the global international telecommunication policy and legal system; it unlocks the door for the fullest participation and makes leadership possible by U.S. telecom companies; it protects existing investments and fosters additional investments.
But if the United States is not a party these valuable, carefully negotiated rights can be diluted or even removed through amendments or encroachment by nations that wish to expand their jurisdiction over cables in the EEZ and upon the continental shelf. Having the United States a party allows it to fully protect the existing rights from nations seeking to restrict these vital freedoms of the sea.
Once the U.S. is a party to the Convention, Verizon and other U.S. telecommunications companies can work with the appropriate U.S. agencies to enforce, when necessary, the freedoms to lay and repair cables on the continental shelf and the EEZ – saving millions of dollars over the life of a cable system, improving the reliability of our critical infrastructure, and putting U.S. companies on a level playing field for operating international cable systems.
If the Congress fails to act to ratify the Convention, U.S. companies will continue to operate at a disadvantage vis-a-vis our global counterparts, indeed having to work through our international providers and their respective governments to seek protection of their submarine cable infrastructure under the Convention.
Third, the Convention will also help the United States government and international companies respond when countries attempt to unlawfully require licenses or permits before submarine cables can be laid or repaired. As an example, Verizon is one of the co-owners of the Europe India Gateway submarine cable system, which passes over the continental shelf claimed by Malta but never enters Malta’s territorial seas. Even though the Convention allows for such transit without interference by coastal nations, Malta’s Resources Authority has threatened legal action if the submarine cable operators do not obtain a license and pay a fee. Not only do these fees add unforeseeable costs on existing undersea cable systems, they raise the specter of coastal nations imposing similar requirements for the sole purpose of raising revenue at the expense of the cable owners. By signing on to the Convention, the U.S. will have the discretion to add its diplomatic efforts in the ongoing dispute with Malta and enforce the treaty’s expressly stated freedom to lay and maintain submarine cables in international waters without tolls, taxation or fees levied by coastal States.
Fiber-optic submarine cables are the lifeblood of U.S. carriers’ global business. Aside from our land-based connections with Canada and Mexico, more than 95 percent of U.S. international traffic – voice, video, Internet and data – travels over 38 submarine cables, each the diameter of a garden hose. Without these cables, current satellite capacity could carry only 7 percent of the total U.S. international traffic.
Fiber-optic submarine cables are the international digital trade routes of the 21st century. And thus, any disruptions to the submarine cable global network can have significant impact on the flow of digital information around the world, with severe consequences for the world economy. As one official from the Federal Reserve noted in referring to submarine cable networks, “When the communication networks go down, the financial sector does not grind to a halt, it snaps to a halt.”i
Second, ratification of the Convention will also help U.S. companies better contend with disruptions to undersea cable service. For example, in March 2007, large sections of two active international cable systems in Southeast Asia were heavily damaged by commercial vessels from Vietnam and taken out of service for about three months. More than 106 miles of cable were removed from the seabed and repaired, at a cost of more than $7 million. It would have been very helpful if the United States, Verizon and other affected U.S. companies had been able to use the Convention to compensate cable owners, arbitrate disputes over service disruptions, and deter future violations.
Given their importance to global networks and the world economy, there must be an appropriate legal framework based upon global cooperation and the rule of law to protect submarine cables. The Convention provides this necessary framework in 10 provisions applicable to submarine cables, going beyond existing international law to provide a comprehensive international legal regime for submarine cables wherever they are – whether in territorial seas, in Exclusive Economic Zones (or “EEZ”), on continental shelves, or on the high seas. Once the Convention is ratified, the United States government will be able to insist on compliance by other nations with these protections. Several recent events underscore the urgent need for a clear and unambiguous framework for protecting this vital communications infrastructure.
First, some nations have attempted to encroach on the ability of U.S. operators to participate effectively in the deployment, maintenance and repair of undersea cables. To oppose these types of foreign encroachments or restrictions effectively, the U.S. must have a seat at the table where it can enforce the Convention’s freedoms to lay, maintain, and repair undersea cables.
What you may not realize is that 70% of all of the country's international telecom traffic, which includes data transfer and video, is carried on these cables. If you eliminate Canada, 90% of the country's international traffic is carried on these cables. The disproportionate importance of these cables to the nation's communication infrastructure can be seen by the fact that if all of the cables were suddenly cut, using every single communications satellite in the sky, only 7% of the United States traffic could be restored. This underscores the incredible capacity of modern fiber optic submarine cables. By any standard, they constitute critical infrastructure to the United States, and indeed the world.
This critical infrastructure, by its very nature, depends upon international cooperation and law. The promise of continued advances in international communications hinges on an international standard providing a compass whereby nations and private companies may steer a course which efficiently allows international communications networks to be seamlessly planned, built, and operated.
UNCLOS provides this modern legal compass. Simply stated, without UNCLOS, US telecom companies are hurt in the planning, development, maintenance, and protection of the world's undersea cable networks. UNCLOS is the key to the world's international telecommunication system; it unlocks the door for the fullest participation and leadership possible by US telecom companies.
At present for the United States, the operative international treaty for international cables is the 1884 International Convention for Protection of Submarine Cables. This venerable treaty was designed for old international telegraph cables. While most of its features are included in UNCLOS, UNCLOS provides real improvements required by the steady progress made in international communications in the past 122 years since the 1884 treaty entered into force. UNLCOS is essential for modern telecom business.
For example, under the 1884 treaty, nations are required to provide criminal and civil sanctions for negligent or intentional actions which cause injury to a submarine telegraph cable. Unfortunately, under this treaty, the cable owner must wait until the damage is done before sanctions are triggered. Under UNCLOS, conduct which is likely to result in injury can also be sanctioned. Under UNCLOS, a cable owner has a remedy to prevent the injury to critical infrastructure in the first place. When one considers the average $1M plus cost of a cable repair and the potential disruption a cable break can cause to vital economic and strategic interests, it is easy to see why cable owners want UNCLOS now.
The 1884 treaty is limited to telegraph cables. UNCLOS provides and expands the protections accorded telegraph cables to all international cables regardless of use.
Critics of UNCLOS raise the argument that since many of the rights spelled out in UNCLOS can be considered customary international law to which the US adheres, there is not need to formally ratify the convention.
From first hand experience, I can say this academic argument fails in the real world. Customary international law requires a court decision to determine state practice, before it can be said to be binding law. Last year I involved in a non-cable major marine pollution case pending in a US court where the issue was the rights of a European coastal nation to refuse entry to a leaking supertanker after the crew had been rescued. I think the issue is well addressed in UNCLOS, but both sides presented expert witnesses and detailed memorandums arguing for different interpretations of what the applicable state practice and customary international law is. Ultimately, we won't know the answer until the Judge decides the issue. The point is that telecom companies can not make business investments on such an illusive basis as customary international law. They need reliable and discernable international law which UNCLOS expressly provides.