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Currently the vital U.S. underseas cable industry has to rely on the outdated 1884 telegraph treaty for its legal basis when defending its rights to lay, maintain, and repair underseas cables.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
Finally, there is temporal ripeness to treat undersea pirates as hostes humani generis. Critical infrastructure below the waterline is often beyond national jurisdiction and remote from the state of affiliation. Therefore, it should be unambiguously incorporated into the LOSC definition of piracy along with ocean platforms. The two-vessel requirement and the private ends limitation should be eliminated to deter signatory states and their inhabitants from looting and possibly inciting economic and environmental shock at the margins of antiquated definitions.
As in several recommendations above, the United States can take the lead in updating the LOSC to account for technology trends and the changing dynamics of modem threats and defenses. The United States can drive this discourse by ratifying the LOSC. Further, it can condition ratification on the incorporation of security amendments, including an updated definition ofpiracy.
The modification of this one definition may not assist in attributing a surreptitious attack to its culprits, but could be the foundation for a more coordinated and enforceable response in the global commons. As in declaring safety zones around pipeline and cable routes, the aim would not be to thwart the possibility of attacks as much as to deter attacks through the specter of tough international sanctions. And if international responses are still deemed too tepid and ginger in punishing pirates, then a revised definition could at least provide affected flag states with a recognized prerogative to prosecute offenders akin to a coastal state's sovereignty within its territorial waters.
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.
As previously stated,61 [bilateral investment treaties] BITs can only partially solve the problems currently arising in the regime applicable to submarine cables. That is the reason why BITs have been referred to in this article as a “complementary” regime rather than a “substitutive” one. In fact, there are certain areas in which BITs cannot represent a solution. Reference is made in particular to the problem of intentional acts by terrorists aimed at damaging the cables, and issues related to cables laid down outside the sovereign areas of States (i.e. the High Seas). With regard to the former, the matter would be better addressed by international criminal law. BITs can establish the liability of the host State in case due diligence is not exercised in the protection of the cables. However, international terrorism is something beyond the control of States, and definitely something that can hardly be faced just by applying the ‘due diligence’ required by the standards of protection of investment law. With regard to the lay of submarine cables outside the sovereignty of States, it is evident that the lay of submarine cables in these areas cannot be regulated by BITs. Host States cannot be subject to obligations on areas on which they lack sovereignty.
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.
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.
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.”