Revision of U.S. underseas cable industry needs UNCLOS protection from Sun, 11/09/2014 - 16:12
Currently the vital U.S. underseas cable industry has to rely on the outdated 1884 telegraph treaty for its legal basis when defending its rights to lay, maintain, and repair underseas cables. U.S. ratification of UNCLOS would better protect U.S. companies’ existing cable systems and foster additional investments by giving telecommunications the legal certainty to their claims that they need.
Quicktabs: Arguments
“[S]ubmarine cables provide backbone international transmission facilities for the global internet, electronic commerce and other international voice and data communications services that are major drivers of the 21st Century global information-based economy….[I]t has never been more important to our U.S. economic infrastructure, and our participation in the global economy, to strengthen the protection and reliability of international submarine cables. The Law of the Sea Convention, particularly as assisted by the enforcement mechanisms available to parties under Article 297, is a critical element of this protection.”
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.
From a global and national security perspective, submarine communications cables also play an essential role. For example, “a major portion of the [U.S. Department of Defense] data traveling on undersea cables is unmanned aerial vehicle (UAV) video, essential for war preparation.”49 As one scholar observed, “without ensured cable connectivity, the future of modern warfare is in jeopardy.”50 A further example of the importance of cables to the military is the development of the Global Information Grid (GiG) by the U.S. Department of Defense.51 The GiG is the “globally, interconnected, end-to-end set of infor- mation capabilities for collecting, processing, storing, disseminating and managing information on demand to warfighters, policy makers and support personnel.”52 The Grid utilizes portions of the international telecommunications systems and has been described as a “global network that can be used to control a global battlespace.”53
The 2010 ROGUCCI report highlighted an important item regarding UNCLOS in that some coastal nations do not comply or have failed to enact legislation that enforces the protection of undersea cables.62 Notwithstanding concerns raised about UNCLOS, the U.S. Congress has not ratified UNCLOS, even after a strong showing before the Senate Committee on Foreign Relations (SCFR) in 2007 pertaining to the 1994 UNCLOS Ratification Agreement. The testimony of Douglas Burnett"Statement of Douglas R. Burnett: On Accession to the United Nations Convention on the Law of the Sea and Ratification of the 1994 Agreement regarding Part XI of the Convention ." Testimony before the Senate Foreign Relations Committee, October 4, 2007. [ More (7 quotes) ] before the SCFR speaks to the conclusion: “It would be in the best interest of the U.S. to ratify this treaty because the U.S. telecom and power companies, the U.S. Navy and scientists, can seek the assistance of the U.S. government to enforce the rights of cable owners to lay, repair, and maintain cables outside of territorial seas and to prevent these rights from being diminished without U.S. involvement.63"Statement of Douglas R. Burnett: On Accession to the United Nations Convention on the Law of the Sea and Ratification of the 1994 Agreement regarding Part XI of the Convention ." Testimony before the Senate Foreign Relations Committee, October 4, 2007. [ More (7 quotes) ]” Currently, a vote of the entire U.S. Senate has yet to be scheduled. Without passing this legislation, the U.S. can only resort to the 1884 Convention rules on telegraph cables in the event it seeks to enforce cable protection.64
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.
In November 2007, there was a report of the intentional sabotage of a cable in Bangladesh, which resulted in a total loss of communications for at least one week causing a loss of 1.05 million U.S. dollars in revenue by the Bangladesh Telegraph and Telephone Board.201 In addition, there have also been reports of cable theft in Jamaica in 2008 where Cable and Wireless Jamaica lost 1.5 million dollars,202 and a 2010 attack by separatists against the beach manhole con- nection of a submarine cable system linking the Philippines with Japan.203 In March 2013, it was reported that 16 tons of submarine cables laid on the sea- bed between Bangka Island and the Riau Islands in Indonesia were stolen.204 Perhaps more disturbingly is an incident that occurred in April 2013, when there were interruptions on multiple undersea communications cables that link Europe to the Middle East and Asia including I-ME-WE, TE North, EIG and SEA-ME-WE 3.205 While initially chalked up to dragging ship anchors, the Egyptian coast guard caught three divers trying to cut the SEA-ME-WE-4 near Alexandria, although the motives of such an act remain unknown.206
Currently, undersea cables are protected by the following international treaties: the International Convention for Protection of Submarine Cables of 1884, the Geneva Convention of the Continental Shelf, and the Geneva Convention on the High Seas are separate but, both ratified in 1958, and the U.N. Convention on the Law of the Sea (UNCLOS) of 1982. The 1958 Geneva Convention incorporates earlier treaties regarding the laying and repair of cables on the high seas. The U.S. has signed, but not ratified UNCLOS, which entered into force in 1994 and currently has 153 nations as parties.57
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.
Given the likely economic and military impacts of cable breaks, the ability to threaten or protect submarine cables and their shore landings will be increasingly important in future conflicts. In a crisis, an aggressor could use multiple coordinated attacks on cables to compel an opponent to back down or employ them as part of an opening offensive to cut off the defender’s military forces from national commanders, intelligence data, and sensor information. Cable attacks could also be highly destabilizing, since they could prevent a nuclear-armed opponent from controlling and monitoring its strategic weapons and early-warning systems. In response, the country targeted could choose to place its nuclear weapons in a higher alert condition – or initiate a preemptive attack.