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Currently the vital U.S. underseas cable industry has to rely on the outdated 1884 telegraph treaty for its legal basis when defending its rights to lay, maintain, and repair underseas cables.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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States and private owners may assert claims or jurisdiction over undersea infrastructure on various grounds. States may assert claims on behalf of injured parties incorporated or present within their jurisdiction. Pipeline and cable owners, meanwhile, have direct recourse to traditional admiralty remedies in national courts that retain jurisdiction over the vessels and persons responsible for undersea depredations.82 However, under international law, a corporate person whose property has been damaged possesses rights that are merely derivative of the rights of its state of nationality. As a broad based source of international maritime rights and obligations, the 1982 Convention on the Law of the Sea (LOSC, or colloquially, the "Constitution of the Oceans") 84 currently contains the most robust provisions for claims asserted by either affected states or subsea proprietors.
The legal status of pipelines in waters beyond national urisdiction has been associated with the status of submarine cables. Without the LOSC, two operative treaties for international cables exist: the 1884 International Convention for Protection of Submarine Telegraph Cables (Cable Convention), and the 1958 Geneva Convention on the High Seas.87 These treaties deal with laying and repairing cables on the high seas-not in Exclusive Economic Zones (EEZ) and upon the continental shelf8.8 Moreover, they do not afford commercial owners significant deterrence against depredations.
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The urgency with which U.S. telecommunication companies need the Convention's specific protections for cables increases with each passing year. The Russian Federation since 1995 is claiming the right to delineate cable routes on its continental shelf in the Artie. These actions are violations of the Convention which does not allow a coastal nation to delineate or require permits for the routes of international cables or cable repairs outside territorial seas within the EEZ or upon the continental shelf. Without the United States being a party, U.S. telecommunication companies are on weaker grounds to question these actions, because the United States itself is held back from being able to enforce the Convention's freedoms to lay, maintain, and repair cables in the EEZ and upon the continental shelf.
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Even if the LOSC fails to classify subsea attack as piracy with full recourse to the convention's robust remedies, it does proscribe depredations against cables and pipelines under the high seas and the EEZ. As discussed above, the traditional rights of U.S. cable owners outside of territorial waters have been victimized by a dearth of enforcing legislation. By delaying the ratification of the LOSC, this lack of effective prosecution persists.157
World telecom companies rightly believe that the LOSC facilitates more confident investments than simply operating under the bare aegis of customary international law.158 Simply defending against customary law encroachments does not deter underwater attack, but with U.S. ratification, U.S. telecom and energy companies as well as the U.S. Navy could seek greater government assistance in enforcing propert rights and undersea infrastructure security outside of territorial seas.159 Moreover, all U.S. stakeholders would have a firmer basis in holding other states responsible for their loss.160
As a condition for ratifying LOSC, the United States could take the helm in updating the convention to meet new military and commercial paradigms since it was first drafted three decades ago. Such revisions may include one or more of the following proposals.
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Under the 1884 treaty, nations are required to provide criminal and civil sanctions for negligent or intentional actions by third parties which damage a cable. But under the 1884 treaty, the cable owner must wait until the damage is done before these sanctions are triggered. In welcome contrast, under the 1982 Convention, third party conduct which is likely to result in damage is sanctioned in addition to actual damage cases. So the cable owner has a remedy to prevent the injury to critical infrastructure in the first place10. When one considers the average $1M plus cost repair a single cable and the disruption a cable break can cause to essential economic and strategic interests, it is easy to see why U.S. telecommunications companies need the United States to accede to the Convention.
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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.
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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.