Revision of U.S. underseas cable industry needs UNCLOS protection from Sat, 11/11/2017 - 17:14
Currently the vital U.S. underseas cable industry has to rely on the outdated 1884 telegraph treaty for its legal basis when defending its rights to lay, maintain, and repair underseas cables.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.
Quicktabs: Arguments
Once the U.S. is a party to the Convention, Verizon and other U.S. telecommunications companies can work with the appropriate U.S. agencies to enforce, when necessary, the freedoms to lay and repair cables on the continental shelf and the EEZ – saving millions of dollars over the life of a cable system, improving the reliability of our critical infrastructure, and putting U.S. companies on a level playing field for operating international cable systems.
If the Congress fails to act to ratify the Convention, U.S. companies will continue to operate at a disadvantage vis-a-vis our global counterparts, indeed having to work through our international providers and their respective governments to seek protection of their submarine cable infrastructure under the Convention.
That security gap should be of international concern for a number of reasons. The first successful hostile ac- tions by pirates and terrorists against active international cables already have occurred. In March 2007 Vietnamese pirates in multiple vessels carried out high-seas depredations on two active submarine cable systems, including the theft of optical amplifiers that rendered the systems inoperative for 79 days until re- placements could be manufactured.4 At the time, cable owners urgently pleaded with at least four nations for help in preventing ad- ditional attacks, only to learn that none of those governments had contingency plans for such action. Similar damage was inflicted on a newly laid cable in Indonesian archipelagic waters in 2010.
Submarine cables are legitimate targets of belligerents in war.5 The United States cut cables linking Spain to its colonies during the Spanish-American War.6 The first offensive action of Britain’s Royal Navy in World War I was cutting Germany’s international links to the rest of the world by severing its cables.7
But attacks on cables by terrorists are new. On 11 June 2010, terrorists in the Philippines successfully struck an international cable.8 It is naïve to assume that submarine- cable landing stations, cables, the cable ships, and the marine depots that maintain the systems will escape asym- metric terrorist acts.
Third, the Convention will also help the United States government and international companies respond when countries attempt to unlawfully require licenses or permits before submarine cables can be laid or repaired. As an example, Verizon is one of the co-owners of the Europe India Gateway submarine cable system, which passes over the continental shelf claimed by Malta but never enters Malta’s territorial seas. Even though the Convention allows for such transit without interference by coastal nations, Malta’s Resources Authority has threatened legal action if the submarine cable operators do not obtain a license and pay a fee. Not only do these fees add unforeseeable costs on existing undersea cable systems, they raise the specter of coastal nations imposing similar requirements for the sole purpose of raising revenue at the expense of the cable owners. By signing on to the Convention, the U.S. will have the discretion to add its diplomatic efforts in the ongoing dispute with Malta and enforce the treaty’s expressly stated freedom to lay and maintain submarine cables in international waters without tolls, taxation or fees levied by coastal States.
Undersea cable expert Douglas R. Burnett argues that "it is naYve to assume that submarine-cable landing stations, cables, the cable ships, and the marine depots that maintain the systems will escape asymmetric terrorist acts,"" and recent cases have proven that Burnett's concern is not unfounded. In 2007, "piracy was blamed in the theft of active submarine cables and equipment" off the coast of Vietnam." "In early 2008, over the course of just a few days, multiple cables were cut off the coasts of Egypt and Dubai," causing at least fourteen countries to lose a significant amount of data traffic." The "Maldives was entirely disconnectedfromtherestoftheworld."60 Theshorttimespanandclose proximity of these cuts raised suspicions of a deliberate attack.61 Most recently, in June 2010, terrorists in the Philippines struck an international cable.62 The public location of the cables and their lack of sophisticated armor or protection make them incredibly vulnerable to intentional attacks.
Second, ratification of the Convention will also help U.S. companies better contend with disruptions to undersea cable service. For example, in March 2007, large sections of two active international cable systems in Southeast Asia were heavily damaged by commercial vessels from Vietnam and taken out of service for about three months. More than 106 miles of cable were removed from the seabed and repaired, at a cost of more than $7 million. It would have been very helpful if the United States, Verizon and other affected U.S. companies had been able to use the Convention to compensate cable owners, arbitrate disputes over service disruptions, and deter future violations.
Most of the solutions that have been put forward by scholars focus on the structural security issues alone and what governments must do to secure this vital infrastructure. Douglas Burnett argues that governments should follow the lead of Australia and Singapore and coordinate a single point of contact for undersea cable issues.106 He suggests that the U.S. Navy should reach out to naval allies such as Canada and France as well as to cable industry representatives and together develop cable-protection strategies that enable the navy to respond quickly to pirate and terrorist attacks.107 Commander Michael Matis of the U.S. Navy recommends creating a new international cable construction regulatory regime that would promote greater international cooperation and information sharing.108 As part of that effort, he urges the United States to immediately ratify UNCLOS and encourages UNCLOS members to collectively update their legislation to protect cables and make it an international crime to tamper with them.109 These scholars understand that any action to increase the safety of undersea cables must be international. Models have shown that a cable break off the coasts of Marseille could have detrimental effects on data flow in and out of India.110 In other words, merely increasing security in one's own waters will not be sufficient. Any security strategy must be global in scope.