The Vulnerability of Subsea Infrastructure to Underwater Attack: Legal Shortcomings and the Way Forward
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Ambiguity, coupled with our extreme reliance on undersea infrastructure, was on display in late January and early February 2008. Four undersea telecommunication cables were mysteriously cut within the course of two days, crippling Internet access across wide swaths of the Middle East and India.59 Two cable breaks were in the Mediterranean--one near Alexandria, Egypt, and the other in the waters off Marseille, France.60 The third break was thirty-five miles off the coast of Dubai and the fourth was along a cable linking the United Arab Emirates to Qatar.61 Most telecommunication experts and operators deemed sabotage unlikely, believing instead that ship anchors had severed the cables when heavy storms swept through the region.62 Nevertheless, the Egyptian Ministry of Communications refuted the presence of any ships near the Mediterranean cable cuts.63 Moreover, the improbable incidence of four cuts in 48 hours fueled speculation about military involvement.64 Sabotage theorists seized on reports of stifled Internet traffic through Iran,65 while traffic to Israel, Lebanon and Iraq was apparently immune from chaos.66 At the very least, this episode highlights how relatively small damage to undersea cables can instantly affect millions of people, and how a stealthy underwater attack- ambiguous and non-attributive in nature-could deal such a crippling blow.
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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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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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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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Submarine cables and pipelines are vulnerable assets in the global commons.182 Their protection from undersea attack is a real prescriptive and enforcement challenge because of our extreme reliance on this critical infrastructure; its multi-jurisdictional span beyond territorial seas; the availability of precise locational coordinates; the opaque environment below the waterline; and the accessibility to commercial-grade vehicles that can exploit this environment and inflict disproportionate harm.
The opaque environment and the accessibility to UUVs set this challenge apart from challenges above the water's surface to flagged vessels and platforms. As with cyber threats, this necessitates an effective deterrence policy to compensate for an inability to pinpoint suspected culprits. Not only do legal shortcomings in jurisdiction and security enforcement float above the surface, but arguably more sinister shortcomings lurk below. These threats also require an even more delicate balance between disclosure and secrecy, and between freedom ofnavigation and reasonable restraints for collective security.
In the end, whatever vigor is applied towards cyber security, and whatever balance is struck for internet freedoms should be matched by securing the very cables that transport this life-blood of commerce. Likewise, investment in energy independence should correspond to the security of the very arteries that enable and spur offshore energy exploration.