Protection of underseas cables in Article 113 in UNCLOS is insufficient considering their critical importance

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.