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Currently the vital U.S. underseas cable industry has to rely on the outdated 1884 telegraph treaty for its legal basis when defending its rights to lay, maintain, and repair underseas cables.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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Accession to the Law of the Sea Convention would better protect U.S. companies’ existing cable systems and foster additional investments. Companies would benefit from the legal certainty provided by treaty-based rights to lay, maintain, and repair cables, and conduct surveys incident to laying cables. Like shipping companies, telecom interests emphasize that they cannot merely rely on customary international law because of the threat of encroachments by coastal states. Russia’s attempt to delineate cable routes on its continental margin in the Arctic proves that fears of encroachment are not theoretical. As a non-party, the U.S. loses more than just credibility to lodge diplomatic protests to such actions because, with respect to its submarine cable provisions, the Convention permits parties to invoke its meaningful dispute resolution procedures. U.S. telecom companies have repeatedly emphasized that they are comfortable with, and want to rely on, the compulsory dispute resolution provisions in the Convention.
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About two years ago, French fishing vessels unreasonably obstructed a British repair vessel in carrying out cable maintenance off the coast of France by blocking its path. UNCLOS provides remedies which would protect the cable owner's rights in these situations. Judge Wolfrum, the President of the International Law of the Sea Tribunal, is in the audience and could certainly expand on this point. For those who may feel that was only a British and French problem, you would be wrong. The cable involved carried US traffic.
Since 1998 China6 is requiring permits for cables not landing in the country, but which transit its EEZ. The Russian Federation since 1995 is claiming the right to delineate cable routes on its continental shelf in the Arctic as far north as the North Pole. Both of actions are violations of Article 79 of UNCLOS which does not allow a coastal nation to delineate or permit the routes of transiting international cables on the continental shelf.
Last February, in response to a proposal by the province of Nova Scotia to possibly mandate cable routes and require payments to bottom fishermen for use of the seabed in international waters, North American cable owners based their strong jurisdictional arguments against the plan on the straight forward provisions of UNCLOS, which since Canada is a party to UNCLOS, are binding.
UNCLOS is a powerful tool to overcome these encroachments on the freedom to lay cables, but US companies suffer, because the United States has not become a party. If the United States is a party to UNCLOS, then US telecom companies, the Navy, and scientists can enlist the U.S. government to enforce the rights of cable owners to lay, repair and maintain cables in international waters. Without the status of a party to UNCLOS, the United States has no access to the important remedies under UNCLOS to enforce treaty obligations on behalf of US companies or government agencies.
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Tapping today’s fiber-optic cables is theoretically possible, but it is easier to cut or damage them and significantly impact the cables’ users. And while the exact location of cables is not publicly available, improvements to “bottom survey” equipment and unmanned undersea vehicles are making finding cables easier and faster. In time-sensitive military or diplomatic operations, the loss of communications for a few minutes or hours can be catastrophic. With financial transactions, the loss of even fractions of a second can cost millions of dollars as high-speed trades miss their targets and other transactions fail to go through or are lost entirely. The dozens of cable outages that occur each year do not cause a complete loss of service, but they do slow data-transfer speeds as information is re-routed through fewer intact cables. Most of these cable breaks happen in relatively shallow water, when rough weather moves cables around until they break or fishing trawlers catch a cable in a net. Some outages, however, have more nefarious origins. In 2013, three divers with hand tools cut the main cable connecting Egypt with Europe, reducing Egypt’s Internet bandwidth by 60%.
Repairing a submarine cable at sea is difficult and time consuming. First the break has to be located using built-in monitoring systems that can indicate the cable segment in which the break is likely to have occurred. Cable repair ships then must go to that location and pull up the cable until they get to the damaged spot. A new section of cable can then be spliced in, which can take several days to complete.
Our economy is hurt when delimitation of our extended continental shelf is delayed and when legal uncertainties from non-membership prevent our oil and gas industry from exploiting the rich continental margin, especially in the Arctic. Development of resources in the Chukchi and Beaufort Seas off Alaska's coast would create approximately 54,700 jobs per year nationwide with a $145 billion payroll and would generate $193 billion in federal, state and local revenue according to a study done by the University of Alaska's Institute of Social and Economic Research.
The delay in ratifying this treaty has already cost the loss of one of our four seabed mine sites, the richest in the world, and if we do not soon adhere the United States risks losing the remaining three, with billions in the strategic minerals manganese, copper, cobalt and nickel at stake. A single seabed mining operation would spur the economy with total capital purchases of close to one and a half billion dollars and would stimulate robust job creation. Further, for our nation to lose this new industry would cost millions in consumer losses and foregone tax revenues and billions in our balance of trade as the United States was forced to import rather than produce these strategic minerals.
Undersea cables carry more than 95% of international Internet and telephonic transmissions. These crucial cables also transmit financial data and transactions worth trillions every day. The Convention establishes the legal underpinning for protecting and managing these cables. At a National Press Club event a spokesman for AT&T warned that not being a party places America's crucial communication links at risk.
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In economic terms, Pike stressed that advances in technology have dramatically impacted the impor- tance of acceding to the Convention, particularly in terms of the nation’s economic security. Furthermore, he believes the treaty under consideration today is perceived far differently than it was when amended in 1994, just as the Internet was being introduced to the world.
“Now, we’ve got 95 percent of all of our Internet traffic, whether it’s orders for widgets, whether it’s science or military, all of this information travels on undersea cables, and we basically have no protection over those,” he said, illustrating why telecommunications giants like AT&T and Verizon, as well as the North American Submarine Cable Association, are among vocal advocates on Capitol Hill pushing for ratification. “These organizations strongly support the treaty because it affords us unfettered ability to lay and maintain these undersea cables, but undersea cables were sort of an afterthought in 1982.
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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.