Revision of U.S. underseas cable industry needs UNCLOS protection from Wed, 11/12/2014 - 22:58
Currently the vital U.S. underseas cable industry has to rely on the outdated 1884 telegraph treaty for its legal basis when defending its rights to lay, maintain, and repair underseas cables.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
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.
Undersea cable expert Douglas R. Burnett argues that "it is naYve to assume that submarine-cable landing stations, cables, the cable ships, and the marine depots that maintain the systems will escape asymmetric terrorist acts,"" and recent cases have proven that Burnett's concern is not unfounded. In 2007, "piracy was blamed in the theft of active submarine cables and equipment" off the coast of Vietnam." "In early 2008, over the course of just a few days, multiple cables were cut off the coasts of Egypt and Dubai," causing at least fourteen countries to lose a significant amount of data traffic." The "Maldives was entirely disconnectedfromtherestoftheworld."60 Theshorttimespanandclose proximity of these cuts raised suspicions of a deliberate attack.61 Most recently, in June 2010, terrorists in the Philippines struck an international cable.62 The public location of the cables and their lack of sophisticated armor or protection make them incredibly vulnerable to intentional attacks.
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.
Most of the solutions that have been put forward by scholars focus on the structural security issues alone and what governments must do to secure this vital infrastructure. Douglas Burnett argues that governments should follow the lead of Australia and Singapore and coordinate a single point of contact for undersea cable issues.106 He suggests that the U.S. Navy should reach out to naval allies such as Canada and France as well as to cable industry representatives and together develop cable-protection strategies that enable the navy to respond quickly to pirate and terrorist attacks.107 Commander Michael Matis of the U.S. Navy recommends creating a new international cable construction regulatory regime that would promote greater international cooperation and information sharing.108 As part of that effort, he urges the United States to immediately ratify UNCLOS and encourages UNCLOS members to collectively update their legislation to protect cables and make it an international crime to tamper with them.109 These scholars understand that any action to increase the safety of undersea cables must be international. Models have shown that a cable break off the coasts of Marseille could have detrimental effects on data flow in and out of India.110 In other words, merely increasing security in one's own waters will not be sufficient. Any security strategy must be global in scope.
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.
Perhaps even more troubling than the above-mentioned structural vulnerability of undersea cables is the lack of security efforts and criminal sanctions by governments to protect undersea cables and deter future attacks. U.S. National Intelligence director James Clapper recently testified that cyber attacks, (by which he meant purely digital attacks like computer worms or viruses that can shut down the electrical grid or financial markets),69 are the nation's number one security priority.70 Clapper highlighted how much governments, utilities, and financial services rely on the Internet and therefore are vulnerable to cyber attack.71 Yet at the same time, protection of undersea cables (a critical infrastructure that supports the Internet) from physical attacks is sorely lacking. For example, in the United States, the willful destruction of an international submarine cable is punishable by a maximum of two years in prison and a mere $5,000 fine.72 This fine is hardly a deterrent, and is far out of proportion to the damage that such an act would cause. Furthermore, the United States has not joined the 162 countries that have signed onto the United Nations Convention on the Law of the Sea (UNCLOS).73 As a result, there are no UNCLOS security protections for U.S. undersea cables outside of U.S. waters.74 Only Australia and Singapore have created a single point of contact within their governments to address issues of undersea cable security and to coordinate with cable owners to combat hostile actions.75 On a worldwide level, no organization is responsible for undersea cables and there have been no international tests of cable defense systems.76 The maintenance and security of the cables is left to private trade organizations.77 Given the extent to which governments themselves rely on these cables,78 the current lack of a coherent undersea cable security strategy by governments must be remedied. The infrastructure itself is vulnerable, and governments like the United States are not yet taking adequate actions to protect it. It is not enough for governments like the United States to focus on digital attacks on Internet systems. They must also take action to protect the physical structure of the Internet.79