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Whether UNCLOS can be used to address the mass surveillance carried out through the tapping of undersea cables is not entirely clear. To the extent that UNCLOS governs intelligence gathering activities, it could be argued that it only applies to intelligence gathering activities that take place within the mari- time domain, and will not govern the use of intercepts at cable landing stations. Further, if indeed mass surveillance can be done by physically tapping undersea cables by splicing the cable or otherwise, it is also not certain that UNCLOS is the applicable regime to govern such acts. Such surveillance does not fall within conventional perceptions of military activities/intelligence gathering at sea, which as mentioned above, is targeted, and aims at enhancing knowledge of the marine environment and/or the military capabilities of other State’s navies. That said, UNCLOS is of course a living instrument and subject to evolutionary interpretation, and for present purposes, this Article will as- sume that UNCLOS applies to the mass surveillance carried out by tapping undersea cables to the extent it involves physically tapping cables as they lay on the seabed.
In November 2007, there was a report of the intentional sabotage of a cable in Bangladesh, which resulted in a total loss of communications for at least one week causing a loss of 1.05 million U.S. dollars in revenue by the Bangladesh Telegraph and Telephone Board.201 In addition, there have also been reports of cable theft in Jamaica in 2008 where Cable and Wireless Jamaica lost 1.5 million dollars,202 and a 2010 attack by separatists against the beach manhole con- nection of a submarine cable system linking the Philippines with Japan.203 In March 2013, it was reported that 16 tons of submarine cables laid on the sea- bed between Bangka Island and the Riau Islands in Indonesia were stolen.204 Perhaps more disturbingly is an incident that occurred in April 2013, when there were interruptions on multiple undersea communications cables that link Europe to the Middle East and Asia including I-ME-WE, TE North, EIG and SEA-ME-WE 3.205 While initially chalked up to dragging ship anchors, the Egyptian coast guard caught three divers trying to cut the SEA-ME-WE-4 near Alexandria, although the motives of such an act remain unknown.206
The U.S. Department of Defense listed the world’s cable landing sites as among the most critical of infrastructures for the United States.183 Cable landing sites are concentrated in a few geographic areas due to high expense and economies of scale.184 According to one report, there are at least ten major cable chokepoints that exist globally.185 As observed by one commentator:
The most dangerous vulnerability is the aggregation of high-capacity bandwidth circuits into a small number of unprotected carrier hotels in which several hundred net- work operators interconnect their circuits in one non-secure building. These buildings often feed directly into the international undersea cable system. Security is often farcical. This lack of protection exists in several carrier hotels on transit points along the axis of the international telecommunications system that includes Dubai, Zurich, Frankfurt, London, New York, San Francisco, Los Angeles, Tokyo, Hong Kong and Singapore.186
Apart from cable landing sites, another vulnerability is the vast network of submarine cables on the seabed itself. Telecommunications companies “concentrate a large percentage of overall bandwidth in just a few major cable systems because new cable designs also incorporate tremendous capacity.”187 Cables also tend to be bundled together, “offering a potentially lucrative, consolidated target for sabotage.”188 If a bundle of cables are severed all at once, it could result in responders having little to no chance of restoring the connection by rerouting the traffic to mitigate the effects of the cut.189 Due to the unpredictable ocean environment, there are obvious challenges in actually carrying out an attack, however, a disruption could occur as a result of something as simple as dropping an anchor on a cable or sending a scuba diver down to physically cut them (all cable routes are publicly available).190 Further, one scholar has pointed out the possibility of nefarious elements using an Unmanned Undersea Vehicle (UUV) to attack cables.191
From a global and national security perspective, submarine communications cables also play an essential role. For example, “a major portion of the [U.S. Department of Defense] data traveling on undersea cables is unmanned aerial vehicle (UAV) video, essential for war preparation.”49 As one scholar observed, “without ensured cable connectivity, the future of modern warfare is in jeopardy.”50 A further example of the importance of cables to the military is the development of the Global Information Grid (GiG) by the U.S. Department of Defense.51 The GiG is the “globally, interconnected, end-to-end set of infor- mation capabilities for collecting, processing, storing, disseminating and managing information on demand to warfighters, policy makers and support personnel.”52 The Grid utilizes portions of the international telecommunications systems and has been described as a “global network that can be used to control a global battlespace.”53
Similarly, President Obama emphasized the nexus between international law and national security in his 2013 National Strategy for the Arctic Region, in which he focused on three lines of effort. One of the three lines was to:
Strengthen International Cooperation-Working through bilateral relationships and multilateral bodies, including the Arctic Council, we will pursue arrangements that advance collective interests, promote shared Arctic state prosperity, protect the Arctic environment, and enhance regional security, and we will work toward U.S. accession to the United Nations Convention on the Law of the Sea.18 Implementation Plan for The National Strategy for the Arctic Region . The White House: Washington, D.C., January 31, 2014 (32p). [ More (3 quotes) ]
President Obama reiterated his commitment to U.S. accession in the recently-released 2015 National Security Strategy, in which he warned that failure to ratify UNCLOS "undermines our national interest in a rules-based international order."19
The 1982 LOS Convention sets out a carefully-drafted balance between safety, security and stewardship in the maritime domain. It is not a perfect treaty (is there such a thing?), but on balance, it is a very good treaty for the United States. The audience need not take my word for that. The first recommendation to come out of the bipartisan blue ribbon U.S. Commission on Ocean Policy, chaired by former chief of naval operations and secretary of energy James Watkins, was a recommendation that the United States accede to the 1982 Convention.13 Similarly, former secretary of defense and CIA director Leon Panetta supported accession in his capacity as chairman of the prestigious Pew Ocean Commission.14 Following a decade-long debate over the Convention's strengths and weaknesses, Canada-our Arctic neighbor and fellow member of NATO and the Arctic Council-ratified the Convention in 2003.15
First, the policy statement highlights the importance to our national security of navigation rights through international straits in the Northwest Passage over North America and the Northern Sea Route over Russia's northern border.33 Military and commercial navigation through those straits will become more important-and perhaps more contested-as the Arctic sea ice recedes and thins. Part III of the LOS Convention on straits used for international navigation includes twelve detailed articles that address the status of such straits, the right of transit passage, and the rights, responsibilities, and jurisdiction of states bordering on those straits. Although a right of transit passage through international states almost certainly ripened into a rule of customary law by the time the LOS Convention entered into force in 1994 (and before Canada became a party to the Convention in 2003), it seems certain that the customary law rule is not nearly as well defined as the articles in Part III of the Convention. Only as a party to the Convention would the United States be in a position to assert the full scope of the navigation rights set out in Part III of the Convention.
The third way in which the U.S. national Arctic policy goals would be enhanced by accession to the LOS Convention concerns the nation's commitment to enhancing scientific monitoring and research into local, regional, and global environmental issues, and measures that will ensure that natural resource management and economic development in the region are environmentally sustainable. Much of the research to accomplish those goals must necessarily be conducted in waters beyond U.S. jurisdiction. Unfortunately, U.S. oceanographers are presently at a serious disadvantage in gaining access to the offshore waters of other states. As an earlier presidential cabinet report concluded, our status as a non-party to the Convention "often slows or complicates approval for U.S. ships and aircraft access to conduct marine scientific research in foreign waters."35 One disadvantage of our non-party status that stands out is that U.S. researchers are unable to take advantage of the more favorable "implied consent" provisions for gaining access to conduct marine scientific research in other states' exclusive economic zones or on their continental shelves.36
Third, aside from ad hoc diplomacy and negotiations within Association for South East Asian Nations (ASEAN), whose decisions require unanimity, UNCLOS is one of the few multilateral mechanisms that can directly address territorial disputes in the seas. General Dempsey, Chairman of the Joint Chiefs of Staff, noted that ratifying UNCLOS, “gives us another tool to effectively resolve conflict at every level.” While it is true that ratifying UNCLOS hasn’t vindicated Japan, for example, in its dispute with China, the treaty has only enjoyed widespread support for sixteen years. Given this short history, it is almost surprising that the Philippines has already asserted this type of claim against China through UNCLOS to bolster its relatively weak strategic position. UNCLOS, therefore, is useful insofar as it provides another venue through which the U.S. could press its claims in the region. American treaty obligations with both Japan and the Philippines give us a strong interest in legitimizing and shaping these new multilateral dispute resolution mechanisms.
Second, ratifying UNCLOS will allow us to participate in and help shape dispute resolution mechanisms like the International Tribunal for the Law of the Sea. Military officers and Bush administration national security staff have highlighted the importance of shaping norms that define these territorial disputes. The Philippines, in the International Tribunal, has already raised key issues regarding China’s 9-dash line and a preliminary decision is expected sometime in 2015. Professor Dutton from the U.S. Naval War College has further emphasized that China’s interpretation of key UNCLOS provisions is part of a “coordinated legal campaign to extend maximal security jurisdiction over the East China Sea and the international airspace above it.” It is true that some dispute whether ratifying UNCLOS would materially change China’s understanding of these territorial rights. However, the U.S. cannot sit on the sidelines as ITLOS creates precedent that will become binding on 166 of the 193 states recognized by the United Nations. Customary international law is, by its very nature, subject to change with developments in state practice and understandings of legal obligation (opinio juris).[1] In a foundational case, the International Court of Justice found that treaty provisions become customary law when they are followed by specially affected states. By not signing UNCLOS, the US, certainly a specially affected state, robs its decisions of any potency as a source of customary law.
Those who assert that America can depend on the strength of its navy and existing customary international law need to face the twin realities that China is increasing its military expenditures and that American forces are overstretched in the face of sharp budget cuts. The U.S. cannot assume that China will adhere to traditional interpretations of customary international law, principles that they had little hand in crafting and do not necessarily serve China’s national interest. Indeed, China has already begun to push back against the customary freedom of navigation afforded to military craft (mainly American) in its exclusive economic zone. The U.S. should take an active role in supporting traditional interpretations of customary international law by engaging in a variety of fora, including the International Tribunal for the Law of the Sea, lest the U.S. cripple itself in this essential debate.