U.S. should drive development of UNCLOS to treat attacks on underseas cables the same as piracy
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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.
Currently the vital U.S. underseas cable industry has to rely on the outdated 1884 telegraph treaty for its legal basis when defending its rights to lay, maintain, and repair underseas cables.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.