Submarine networks carry more than 99% of the world’s intercontinental electronic communications traffic and every day around US$15 trillion worth of transactions travel along them. In many ways, they enable the modern way of living and have allowed generations to make technological advancements and thrive.
Yet, even as technology has developed, laws regulating subsea cables have largely not changed for over 100 years. The question this raises is, why?
A historical outline
A catastrophic volcanic eruption on January 16, 2022, in Tonga cut off the island nation from the rest of the world due to a cut in an undersea cable. The disaster, experts said, uncovered faults in global communications systems that highlighted outdated laws governing submarine cables. Particularly given the fundamental importance of submarine cables to modern global communication.
The convention for the Protection of Submarine Telegraph Cables was adopted by the UK through the Submarine Telegraph Act 1885 and currently has 36 party states. The convention regulates the protection of submarine cables and applies to all legally established cables landed on the territories, colonies or possessions of a party state. It is still in play today.
The convention makes it an offence to break or damage a submarine cable, wilfully or by culpable negligence.
It has been well-documented that the laying and placement of submarine cables require coordination. The installation of cables in certain areas may hurt cables already in place, as well as fishing, navigation, the marine environment and other valuable resources such as historic shipwrecks or areas of geologic significance.
But it doesn’t take into account that 70% of damage is caused accidentally by fishing gear such as trawl nets, dredges, long lines and fish aggregation devices.
In a piece for the Submarine Telecoms Forum, Nicholas Kazaz, an international commercial dispute resolution lawyer for HFW states that the convention was adopted in a world very different from the reality of today.
In his piece published in 2022, he wrote: “The number of cables connecting the international community in 2022 is much greater compared to the number of cables laid in 1884.
“Globalisation and modernisation of maritime transport have also led to a greater number of vessels sailing, which increases the risk of subsea cable damage occurring.”
According to TeleGeography, as of early 2024, there are 574 active and planned submarine cables. The total number of active cables is changing as new cables enter service and older ones are decommissioned.
Thus, the difficulty in governing the sector has inevitably increased.
ICPC view
Capacity got in touch with Kent Bressie, the International Cable Protection Committee’s (ICPC) legal adviser and chair of HWG LLP’s international practice for his thoughts on ocean law and submarine cables.
Formed in 1958, the ICPC is the world’s leading organisation promoting submarine cable protection and resilience. The ICPC works with stakeholders and governments to mitigate risks of natural and human damage to cables, develop recommendations and best practices for industry and governments, promote scientific research on the environmental characteristics of cables, and promote the rule of law for the oceans.
Bressie, meanwhile, has worked extensively in the undersea cable sector and represents operators, suppliers and investors to address critical issues including permitting, national security and foreign investment, commercial agreements and the law of the sea.
He says that the installation, operation, and repair of submarine cables connecting more than one country are governed by a mix of domestic laws and international law, including both treaties and customary international law (generally accepted international norms and practices).
The law of the sea is a body of international law defining the rights and obligations of countries in particular marine areas. The most important law of the sea treaty is the United Nations Convention on the Law of the Sea (UNCLOS), which defines the rights of countries to regulate submarine cables within particular marine areas and also imposes obligations on countries to protect submarine cables from damage.
“UNCLOS recognised the importance of creating a stable legal regime to facilitate submarine cable installation and repair,” Bressie told Capacity.
“What we call maritime law is also important for the submarine cable industry, as it addresses shipping and navigation, including trade in goods, transport of passengers, salvage, seafarers’ rights, towage, insurance, liens, and liability for damage to cables by ships and fishing equipment.”
“Other national laws in the areas of telecommunications, environment, and security govern various aspects of submarine cable installation, operation, and repair.”
However, Bressie notes that there is no international treaty-based organisation that regulates submarine cables. The ICPC is a non-governmental organisation that makes recommendations to industry and governments but cannot bind them to do particular things.
Improvements
Bressie believes that the international and domestic laws that he noted above have generally done a good job of facilitating the proliferation of international submarine cables around the world. There are gaps however, where improvements could be made.
He thinks that UNCLOS could be clearer in denoting limits on how far offshore government authority over submarine cables extends, in requiring governments to expedite permitting of installation and the repair of submarine cables.
“There is no international treaty limiting the ability of countries to damage submarine cables intentionally."
Bressie adds that UNCLOS imposes relatively weak obligations for governments to establish penalties for cable damage and lacks specific provisions for coordination among marine activities and protection of submarine cables from damage due to uncoordinated activities such as deep seabed mining.
He adds: “There is no international treaty limiting the ability of countries to damage submarine cables intentionally.
“In terms of domestic laws governing the development, operation, and protection of submarine cables, some countries have better systems than other countries.”
A new treaty
Over the past six years, Bressie represented the ICPC in negotiations on a new treaty focused on conserving biodiversity beyond national jurisdiction (BBNJ) and using the oceans sustainably. In the treaty, the text of which was agreed upon in June last year, the ICPC sought to promote regulatory certainty for submarine cables and recognise them as critical infrastructure and a sustainable use of the oceans. The BBNJ agreement was an agreement reportedly in the making for more than 15 years.
It sets up procedures for conducting environmental impact assessments of activities on the high seas and the establishment of marine protected areas on the high seas. The latter facilitates the achievement of the target to effectively conserve and manage 30% of land and sea by 2030, which was agreed in December 2022 within the Kunming-Montreal Global Biodiversity Framework.
Bressie says that the BBNJ treaty creates new uncertainties that will need to be addressed over time, even before the treaty enters into force.
“The ICPC remains committed to working with governments, institutions created under the BBNJ treaty, and other stakeholders to implement the treaty to promote regulatory certainty and resilience for submarine cables and recognise them as both critical infrastructure and a sustainable use of the oceans.”
