U.S. underseas cable industry needs UNCLOS protection
Currently the vital U.S. underseas cable industry has to rely on the outdated 1884 telegraph treaty for its legal basis when defending its rights to lay, maintain, and repair underseas cables.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.
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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.
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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.
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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.
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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.”
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This express language in the 1982 Convention reflects the effort of dedicated visionaries in the telecommunication industry who urged Ambassador Richardson and the U.S. Delegation negotiating the Convention to include language that would (1) include within the freedom to lay and repair cables the operational requirements for modern fiber optic systems, including marine route surveys7, burial8, and maintenance, and (2) at the same time prevent coastal nations in their EEZ or upon their continental shelf from restricting these vital activities9.
Directly stated, U.S. telecom companies are hurt and their leadership in this vital sector is diminished without the Convention. The Convention is the key to the global international telecommunication policy and legal system; it unlocks the door for the fullest participation and makes leadership possible by U.S. telecom companies; it protects existing investments and fosters additional investments.
But if the United States is not a party these valuable, carefully negotiated rights can be diluted or even removed through amendments or encroachment by nations that wish to expand their jurisdiction over cables in the EEZ and upon the continental shelf. Having the United States a party allows it to fully protect the existing rights from nations seeking to restrict these vital freedoms of the sea.
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International treaties require states to enact laws providing for criminal sanctions against wrongdoers and vessels that injure international cables willfully or by culpable negligence.2 But compliance is poor.
Australia and New Zealand have modern and extremely effective deterrent laws that generally comply with the U.N. Convention on the Law of the Sea (UNCLOS). In both nations proactive monitoring of cables and effec- tive enforcement of domestic laws has essentially reduced cable faults to zero. But other countries, such as the United States and the United Kingdom, have telegraph-era stat- utes dating to the 1880s that are historical relics having virtually no practical utility.
In the United States, for example, the intentional destruction of an international submarine cable is subject to a ridiculously lenient maximum fine of $5,000 and a prison term of six months.3 The only known attempt to use the archaic law came in 1997, when the U.S. Coast Guard recommended to the U.S. attorney in Florida thathe skipper of a fishing vessel be prosecuted for willfully damaging the U.S.-Cuba cable. The attorney declined to prosecute, deeming the pursuit of a conviction carrying such a paltry penalty to be an inefficient use of his re- sources. Additionally, that sort of handicap for U.S. telecommunications companies is significantly compounded because the United States has not joined the 162 nations that are parties to UNCLOS. Thus there is no UNCLOS protection for their cables outside U.S. territorial seas.
While the United States justifiably can be criticized for allowing its domestic law protecting cables to sink into obsolescence, many nations have no laws whatsoever addressing damage to international cables—even though their economies depend on the critical global infrastructure.
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Once the U.S. is a party to the Convention, Verizon and other U.S. telecommunications companies can work with the appropriate U.S. agencies to enforce, when necessary, the freedoms to lay and repair cables on the continental shelf and the EEZ – saving millions of dollars over the life of a cable system, improving the reliability of our critical infrastructure, and putting U.S. companies on a level playing field for operating international cable systems.
If the Congress fails to act to ratify the Convention, U.S. companies will continue to operate at a disadvantage vis-a-vis our global counterparts, indeed having to work through our international providers and their respective governments to seek protection of their submarine cable infrastructure under the Convention.
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That security gap should be of international concern for a number of reasons. The first successful hostile ac- tions by pirates and terrorists against active international cables already have occurred. In March 2007 Vietnamese pirates in multiple vessels carried out high-seas depredations on two active submarine cable systems, including the theft of optical amplifiers that rendered the systems inoperative for 79 days until re- placements could be manufactured.4 At the time, cable owners urgently pleaded with at least four nations for help in preventing ad- ditional attacks, only to learn that none of those governments had contingency plans for such action. Similar damage was inflicted on a newly laid cable in Indonesian archipelagic waters in 2010.
Submarine cables are legitimate targets of belligerents in war.5 The United States cut cables linking Spain to its colonies during the Spanish-American War.6 The first offensive action of Britain’s Royal Navy in World War I was cutting Germany’s international links to the rest of the world by severing its cables.7
But attacks on cables by terrorists are new. On 11 June 2010, terrorists in the Philippines successfully struck an international cable.8 It is naïve to assume that submarine- cable landing stations, cables, the cable ships, and the marine depots that maintain the systems will escape asym- metric terrorist acts.
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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.
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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.