UNCLOS is inadequate for protection of U.S. underseas cables
UNCLOS does not provide adequate protection for underseas cables against malicious attack or terrorist threat and should be modified.
Currently, the main concerns relating to submarine cables are in the perspective of multiple ocean use introduced by UNCLOS. The conflicts between cables and other ocean uses, the overlapping of maritime zones, the legality of exclusion zones around cables, compensation for lost or damaged fishing gear due to cable interactions, legal liability for damaging cables, and unclear jurisdiction and interdepartmental coordination in the cable licensing and regulatory processes are only some of the potential conflicts to be resolved by States.
In particular, with regard to the laying of submarine cables, doubts can be also expressed about the interaction between the interest of coastal States to regulate their maritime spaces and the possibility to lay submarine cables by other States or individuals. Furthermore, in the maritime zones outside of the sovereignty of coastal States, the freedom to lay cable is often opposed to environmental issues as well as the interest to have safe navigation. Laying activities may interfere with the repair of submarine cables as well as navigation for fishing. In addition to this, coastal States often impose taxes on cables laid on the continental shelf or other excessive regulations.24
This lack of precision in the regulations for the laying of submarine cables leads also to enhance the weakness of the measures of protection available in the field.
As previously stated,25 given the importance of submarine cables to the world economy and to all States, additional measures are necessary to protect cables. The majority of the cable damages are caused by human intervention, but there is no obligation under the UNCLOS on coastal States to adopt laws and regulations to protect submarine cables in the territorial sea. Moreover, even if Article 113 UNCLOS requires States to establish rules on the breaking or injury of cables in the high seas or EEZ by their nationals or by a ship flying their flag, if such break was done wilfully or with negligence, this provision is inadequate, as there is no countermeasure if States do not implement it. Furthermore, it does not deal adequately with the threat as well as theft of cables by terrorists or other voluntary acts.
In areas outside of territorial waters, namely the EEZ and the high seas, Article 113 applies. To recapitulate, Article 113 of UNCLOS requires States to adopt laws and regulations to provide that the breaking or injury by a ship fly- ing its flag or by a person subject to its jurisdiction of a submarine cable be- neath the high seas done willfully or through culpable negligence is a punisha- ble offense.217 While Article 113 could in principle cover intentional damage to the cable network, it has several limitations that render it ineffective at address- ing these threats. First, many States Parties to UNCLOS have not implemented their obligation under Article 113 to extend criminal jurisdiction over acts committed on the high seas or EEZ.218 The States that have implemented Article 113 are usually implementing their obligations under the 1884 Cable Convention; meaning their legislation has not been updated and the penalties are consequently woefully inadequate.219 The most common penalty in national legislation for intentional damage to cables is a monetary penalty,220 which is arguably not commensurate with the damage resulting from intentional inter- ference with cable systems.
Second, jurisdiction under Article 113 is limited to perpetrators who are na- tionals of that State, or if they use a vessel flying the flag of that State.221 Given the critical nature of submarine communications cables there is a strong argument that intentional damage is a crime that attracts universal jurisdiction and that all States should have jurisdiction over the offender. At the very least, the State(s) whose communications have been disrupted should have jurisdiction to prosecute as well as the State on whose continental shelf the damaged cable is located.222
Third, Article 113 only obliges States to adopt laws criminalizing intentional damage, and neither gives warships the right to board, nor arrest a vessel sus- pected of intentionally breaking a cable.223 Generally speaking, due to concerns about unnecessary interference with the freedom of navigation, the right to board vessels in areas outside the territorial sea (i.e. EEZ/high seas) is highly regulated under UNCLOS and is only allowed in certain instances.224 States have opposed a right to board without the consent of the flag states even for the suppression of the most serious crimes.225 However, there is some merit in the argument that warships of all States should have the right to board vessels suspected of intentionally breaking a cable. For example, Article X of the 1884 Cable Convention allows warships to require the master of a vessel suspected of having broken a cable to provide documentation to show the ship’s national- ity and thereafter to make a report to the flag state.226 This provides an effective deterrent to prospective attacks.