Underseas Cables
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UNCLOS is needed as well close to home. UNCLOS provides clear boundaries between seabed users and coastal nations with universal norms. These same norms are needed with respect to federal and state government policy.
In the last eight years, the traditional rights of cable owners outside of territorial waters have been the victim of steady encroachment by certain state agencies and certain federal agencies which seek to expand their regulatory reach over international cables- in California or Oregon out to 200 nautical miles, in New Jersey out to 110 nautical miles off their coasts. Compare these with state jurisdictions over international cables of 3 nautical miles claimed by Florida or New York, and the quandary of cable owners can start to be appreciated. These jurisdictional differences translate into added delays of 1-2 years and millions of additional dollars for installing new cable systems. This jurisdictional confusion would be harmonized by UNCLOS.
The current uncertainty and conflicts over the limits of the United States continental shelf and margin and the rights and obligations of international cables laid on it will be largely resolved by UNCLOS.
About two years ago, French fishing vessels unreasonably obstructed a British repair vessel in carrying out cable maintenance off the coast of France by blocking its path. UNCLOS provides remedies which would protect the cable owner's rights in these situations. Judge Wolfrum, the President of the International Law of the Sea Tribunal, is in the audience and could certainly expand on this point. For those who may feel that was only a British and French problem, you would be wrong. The cable involved carried US traffic.
Since 1998 China6 is requiring permits for cables not landing in the country, but which transit its EEZ. The Russian Federation since 1995 is claiming the right to delineate cable routes on its continental shelf in the Arctic as far north as the North Pole. Both of actions are violations of Article 79 of UNCLOS which does not allow a coastal nation to delineate or permit the routes of transiting international cables on the continental shelf.
Last February, in response to a proposal by the province of Nova Scotia to possibly mandate cable routes and require payments to bottom fishermen for use of the seabed in international waters, North American cable owners based their strong jurisdictional arguments against the plan on the straight forward provisions of UNCLOS, which since Canada is a party to UNCLOS, are binding.
UNCLOS is a powerful tool to overcome these encroachments on the freedom to lay cables, but US companies suffer, because the United States has not become a party. If the United States is a party to UNCLOS, then US telecom companies, the Navy, and scientists can enlist the U.S. government to enforce the rights of cable owners to lay, repair and maintain cables in international waters. Without the status of a party to UNCLOS, the United States has no access to the important remedies under UNCLOS to enforce treaty obligations on behalf of US companies or government agencies.
In economic terms, Pike stressed that advances in technology have dramatically impacted the impor- tance of acceding to the Convention, particularly in terms of the nation’s economic security. Furthermore, he believes the treaty under consideration today is perceived far differently than it was when amended in 1994, just as the Internet was being introduced to the world.
“Now, we’ve got 95 percent of all of our Internet traffic, whether it’s orders for widgets, whether it’s science or military, all of this information travels on undersea cables, and we basically have no protection over those,” he said, illustrating why telecommunications giants like AT&T and Verizon, as well as the North American Submarine Cable Association, are among vocal advocates on Capitol Hill pushing for ratification. “These organizations strongly support the treaty because it affords us unfettered ability to lay and maintain these undersea cables, but undersea cables were sort of an afterthought in 1982.
The urgency with which U.S. telecommunication companies need the Convention's specific protections for cables increases with each passing year. The Russian Federation since 1995 is claiming the right to delineate cable routes on its continental shelf in the Artie. These actions are violations of the Convention which does not allow a coastal nation to delineate or require permits for the routes of international cables or cable repairs outside territorial seas within the EEZ or upon the continental shelf. Without the United States being a party, U.S. telecommunication companies are on weaker grounds to question these actions, because the United States itself is held back from being able to enforce the Convention's freedoms to lay, maintain, and repair cables in the EEZ and upon the continental shelf.
Under the 1884 treaty, nations are required to provide criminal and civil sanctions for negligent or intentional actions by third parties which damage a cable. But under the 1884 treaty, the cable owner must wait until the damage is done before these sanctions are triggered. In welcome contrast, under the 1982 Convention, third party conduct which is likely to result in damage is sanctioned in addition to actual damage cases. So the cable owner has a remedy to prevent the injury to critical infrastructure in the first place10. When one considers the average $1M plus cost repair a single cable and the disruption a cable break can cause to essential economic and strategic interests, it is easy to see why U.S. telecommunications companies need the United States to accede to the Convention.
Another more recent event underscores how U.S. telecommunication companies suffer because the United States is not a party. On March 27, 2007, two active international cable systems were heavily damaged on the high seas and taken out of service for about three months as a result of piratical depredations for private ends by commercial vessels from Vietnam; they stole a total of over 106 miles of cable, including optical amplifiers from these active systems11. Repair costs are estimated in excess of $7.2M with the national economic costs of the disruptions still being ascertained. The cable systems are owned by consortiums,common in the industry12, and the ownership and landing points involve eleven countries. United States co-owners who sustained losses and had their networks disrupted were AT&T, Verizon, and Sprint. With the exception of the United States, all of the nations impacted have tangible preventative and compensatory options as well as obligations to protect their nationals under the 1982 Convention. The Convention expressly proscribes depredations against property on the high seas and the EEZ's and classifies them as piracy with recourse to all of the Convention's robust remedies to put pirates out of action13. Expressly classifying depredations against property such as cables is an example of how the Convention protects cables from new emerging threats.
Besides telecommunication cables, power cables are protected under the Convention. The Juan de Fuca cable, an international electrical cable that will bring power from Canada to Washington State in 2007, is an example of this international submarine cable use14, and there are plans for a power cable from Canada to Boston and New York15.
The scientific Neptune cable system, funded by the National Science Foundation, is another example of a cable use recognized by the Convention. When completed in 2011, along with a joint system now being laid by Canada, this scientific research cable system will form the world's most advanced undersea network of scientific observatories with hundreds of 24/7 monitoring sites off the west coasts of Canada and the United States. These cables will bring the global Internet to the ocean depths and yield new insights into the environment ranging from forecasting volcanic and seismic events to maximizing living marine resource benefits and environmental protection.
Military cables with sensors vital to national defense and homeland security depend on the Convention to allow their placement. Coastalnationencroachmentoramendmentstorestrict this cable use can be best opposed when the United States is an active party.
The BP Gulf of Mexico system, a domestic submarine cable system, will connect in 2008 seven of that company's off-shore production platforms, and possibly others in the future, and will enable energy companies to monitor and operate these platforms continuously from remote control centers ashore, impervious to hurricanes. This cable provides greater energy reliability and environmental safeguards.
Cables for all of these uses benefit from the Convention. Fundamentally, the ability to carry out marine surveys, to lay, maintain, and repair cables outside of territorial seas on an international basis rests on the Convention's protections, hi a world where the competition for use of the oceans is accelerating, disputes by competing coastal nations and seabed users will occur with increasing frequency. By providing express protections to cables over other non- specified uses in the EEZ, the Convention assures that the critical importance of international cable infrastructure is given the priority protection it requires to serve our country16.
John Ryan, chief legal officer at Level 3, underscored the company’s support for the U.S. accession to the Convention. Level 3 operates one of the largest Internet Protocol networks in the world, comprising fiber-optic cables entwined across the ocean floor to 45 countries — from North America, around Latin America, Europe, the Middle East, Africa and the Asia Pacific — or roughly 35,000 miles of sub-sea cable. To that end, he noted that the Internet continues to expand exponentially.
“The next 100 years are going to be about expanding our eyeballs around the world, and in order to do that, more subsea capacity needs to be deployed,” Ryan said.
He said Level 3 strongly supports U.S. accession for reasons that include the protection of international submarine cables; to expand the right to lay and maintain subsea cables; and to guarantee a meaningful dispute resolution process that relates to the operation and implementation of subsea cables.
“Any uncertainty in protecting the infrastructure puts the U.S. and U.S.-based companies at a competitive disadvantage relative to our competitors who are members of the Convention,” Ryan said. “And that uncertainty inhibits economic growth and investment.”
The importance of modern fiber-optic cables to the global economy and the Internet cannot be overstated. In the case of the United States, about 36 submarine cables, each the diameter of a garden hose, carry more than 95 percent of the nation’s international voice, data, and video communications.
Every day the Society for Worldwide Interbank Fi- nancial Telecommunications transmits 15 million mes- sages over cables to more than 8,300 banking organiza- tions, securities institutions, and corporate customers in 195 countries. The Continuous Linked Settlement Bank located in the United Kingdom is just one of the critical market infrastructures that rely on those transmissions, providing global settlement of 17 currencies having an average daily equivalent of approximately $3.9 trillion. Similarly, the U.S. Clearing House Interbank Payment System processes in excess of $1 trillion a day to more than 22 countries for investment companies, securities and commodities exchange organizations, banks, and other financial institutions.
The popular belief that international communications are carried largely by satellite is false. The tremendous volume of data carried on less expensive, modern fiber- optic submarine cables dwarfs the limited capacity of the higher-cost satellites. Additionally, the technical transmission delays and other quality limitations inher- ent in satellites make them marginal for continuous transmission of high-speed voice, video, and data traf- fic. If the cables connecting the United States to the world were cut, it is estimated that every single satellite in the sky combined could carry only 7 percent of the current total traffic volume.
Referring to the submarine cable networks, the Federal Reserve’s staff director for management, Ste- phen Malphrus, observed that “when the communication networks go down, the financial sector does not grind to a halt, it snaps to a halt.” The same can be said for most sectors enmeshed in the global economy through the Internet, including shipping, airlines, and manufacturing.
International treaties require states to enact laws providing for criminal sanctions against wrongdoers and vessels that injure international cables willfully or by culpable negligence.2 But compliance is poor.
Australia and New Zealand have modern and extremely effective deterrent laws that generally comply with the U.N. Convention on the Law of the Sea (UNCLOS). In both nations proactive monitoring of cables and effec- tive enforcement of domestic laws has essentially reduced cable faults to zero. But other countries, such as the United States and the United Kingdom, have telegraph-era stat- utes dating to the 1880s that are historical relics having virtually no practical utility.
In the United States, for example, the intentional destruction of an international submarine cable is subject to a ridiculously lenient maximum fine of $5,000 and a prison term of six months.3 The only known attempt to use the archaic law came in 1997, when the U.S. Coast Guard recommended to the U.S. attorney in Florida thathe skipper of a fishing vessel be prosecuted for willfully damaging the U.S.-Cuba cable. The attorney declined to prosecute, deeming the pursuit of a conviction carrying such a paltry penalty to be an inefficient use of his re- sources. Additionally, that sort of handicap for U.S. telecommunications companies is significantly compounded because the United States has not joined the 162 nations that are parties to UNCLOS. Thus there is no UNCLOS protection for their cables outside U.S. territorial seas.
While the United States justifiably can be criticized for allowing its domestic law protecting cables to sink into obsolescence, many nations have no laws whatsoever addressing damage to international cables—even though their economies depend on the critical global infrastructure.