Revision of U.S. underseas cable industry needs UNCLOS protection from Sat, 11/11/2017 - 17:14
Currently the vital U.S. underseas cable industry has to rely on the outdated 1884 telegraph treaty for its legal basis when defending its rights to lay, maintain, and repair underseas cables.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
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
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.
Submarine infrastructure is already vulnerable to attack and will become even more so in the coming years, especially as undersea vehicles grow more advanced and accessible. Unprotected cables and energy infrastructure could provide adversaries with all kinds of opportunities to gain the upper hand. Hostile forces could, for instance, plant explosive charges in sensitive locations and threaten to pull the trigger. Or they could set off explosions without warning, throwing markets into chaos and disrupting military command-and-control systems. State and nonstate actors could conduct anonymous attacks or act under a false flag. Attributing responsibility for a covert attack would prove challenging, making deterrence extremely difficult. Such moves wouldn’t be unprecedented, of course: before undersea fiber optics dominated global communications, cable cutting was a regular part of warfare. In 1914, the United Kingdom severed all five of Germany’s undersea cables in the English Channel the day after declaring war, and belligerents regularly snipped enemy cables during World War II. But today, it would be more difficult to sever fiber-optic lines without affecting a much larger and more interdependent system—making a potential attack all the more damaging.
“[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