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Submarine Communications Cables andLaw of the Sea: Problems in Law andPracticeTara Davenport aa Centre for International Law National University of Singapore,Singapore

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Ocean Development & International Law, 43:201–242, 2012Copyright © Taylor & Francis Group, LLCISSN: 0090-8320 print / 1521-0642 onlineDOI: 10.1080/00908320.2012.698922

Submarine Communications Cables and Lawof the Sea: Problems in Law and Practice

TARA DAVENPORTCentre for International LawNational University of SingaporeSingapore

Submarine communications cables laid on the seabed of the ocean are the foundation ofthe world’s international telecommunications network. International law, in particular,the law of the sea, has recognized the freedom to lay submarine cables and performassociated operations and has placed certain obligations on states related to the pro-tection of submarine cables. This article examines the international law with respectto submarine cables and discusses the various problems with both the law and statepractice on submarine cables. It argues that these problems are illustrations of the tradi-tional challenges that face the law of the sea; that is, the balancing and accommodationof competing uses of ocean space. It concludes that an important step toward resolvingthese problems is enhanced consultation and cooperation between cable companies andgovernments and that efforts should focus on creating such mechanisms.

Keywords international telecommunications, law of the sea, submarine communica-tions cables

Introduction

The Preamble to the 1982 United Nations Convention on the Law of the Sea (UNCLOS)1

provides that the states parties recognize the “desirability of establishing through this Con-vention, with due regard for the sovereignty of all States, a legal order for the seas and oceanswhich will facilitate international communication. . . . ” International communication wasrecognized as a common good that was the foundation of the increasing globalization andinterconnectedness of the world.2 UNCLOS sought to strengthen the international com-munications regime by, inter alia, preserving freedoms of navigation and the laying ofsubmarine cables in areas under coastal state jurisdiction as well as imposing obligationson the protection of such cables.

Today, the legal regime for international communications established in UNCLOSis more important than ever. The international telecommunications network, a critical

Received 8 November 2011; accepted 14 January 2012.This article is a modified version of the paper submitted for the 2010 Rhodes Academy Submarine

Cables Award 2010 sponsored by the International Cables Protection Committee. The author thanksRobert Beckman and Douglas Burnett for their input and guidance as well as the ICPC for grantingaccess to the ICPC Members’ Database. All errors are the author’s own.

Address correspondence to Tara Davenport, Research Associate, Centre for International Law,National University of Singapore, Bukit Timah Campus, 2nd Storey, Block B, 469 Bukit Timah Road,Singapore 259756. E-mail: ciltmd@nus.edu.sg

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component of international communications, is now predominantly facilitated by submarinecables laid on the ocean floor.3 Such cables enable the transmission of data over longdistances, are the foundation for the Internet, and make possible other essential servicessuch as e-mail, electronic banking and phones.4

However, the international legal regime established in UNCLOS appears to be underincreasing stress, primarily because of the extensive use of submarine cables coupled withthe intensification of competing uses of ocean space. Submarine cables face challengesthat are typical of the issues that the law of the sea aims to minimize; namely, the conflictbetween coastal states and noncoastal states over “inclusive uses” of the ocean that benefitthe international community and “exclusive uses” of the ocean by coastal states.5 This articlewill examine both the international law on submarine cables and state practice relating tothe regulation of submarine cables and the extent to which state practice is consistent withthe law. This article demonstrates that, in view of the critical nature of submarine cables toall states, the common interest lies in finding a balance in the rights and interests of coastalstates, noncoastal states, and the submarine cable industry.

First, the article explains why submarine cables are considered critical communica-tions infrastructure. Next, it provides a brief overview of the international law relating tosubmarine cables. It then examines the problems with law and practice relating to cableoperations (the surveying of cable routes and the laying, repair, and maintenance of cables)and looks at the problems with law and practice on the protection of cables and cable ships.Finally, it explores avenues for the settlement of disputes relating to submarine cables underUNCLOS and discusses recent developments.

Submarine Cables as Critical Global Communications Infrastructure

There are two main types of submarine cables: submarine power cables used to transmitelectricity and submarine communications cables used to transmit data communicationstraffic. Both are designed for underwater use and are usually laid on or buried under theseabed. Submarine communications cables are the focus of this article.

Although submarine cables have been used for communications since 1850,6 satelliteswere the primary facilitator of telecommunications from the mid-1960s.7 In the 1980s, thedevelopment of fiber-optic technology enabled reliable and high-quality transmission of vastquantities of information across the seabed.8 Fiber-optic submarine cables, along with thedevelopment of the Internet in the 1990s, revolutionized telecommunications: “ . . . cablescarried large volumes of voice and data traffic with speed and security: the internet madethat data and information accessible and usable for a multitude of purposes.”9

Today, more than that 95% of the world’s international telecommunications10 areprovided by submarine fiber-optic cables.11 Their width ranges from 17 millimeters to50 millimeters depending on the addition of protective wire armoring12 and the amount ofsubmarine fiber-optic cables found in the world’s oceans exceeds 1 million kilometers.13

They facilitate services such as the Internet, e-mail, phones, Internet banking, all aspects ofdaily life that are taken for granted. Apart from telecommunications, fiber-optic cables havealso been used by the military for intelligence gathering through acoustic sensoring14 andfor marine scientific research.15 In some instances, one cable network can serve multiplefunctions.16 There is no doubt that submarine fiber-optic cables have become “criticalcommunications infrastructure” that is “vitally important to the global economy and thenational security of all States.”17

The widespread use of submarine cables has also spawned an extensive industry. Cablesystem owners are the entities that own and operate the cable system. They usually consist

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of national telecommunications carriers,18 but can also be private companies. Due to thevast capital input that is needed to construct submarine cables, they are usually owned andoperated by a consortium of cable owners.19 Cable suppliers manufacture submarine cablesand cable installers are responsible for installation, repair, and maintenance of submarinecables.20 Cable surveyors are responsible for surveying cable routes before the submarinecables are laid. For ease of reference, the term “cable company” or “cable companies” willbe used to denote any or all of these entities.

International Law on Submarine Cables

There are several international legal instruments governing submarine cables, the 1884 Con-vention for the Protection of Submarine Telegraph Cables (1884 Convention),21 the 1958Geneva Conventions on the High Seas22 and Continental Shelf,23 and the 1982 UNCLOS.24

The 1972 International Regulations for Preventing Collisions at Sea (COLREGS)25 alsocontains rules on the navigation of cable-laying and repair ships so as to prevent collisionswith other ships.

The 1884 Convention was the first international treaty governing submarine telegraphcables. It was primarily prompted by the complaints of British cable companies to theBritish government in 1881 after several telegraphic cables had been damaged in theNorth Sea by the negligence of fishermen.26 The 1884 Convention presently has 40 statesparties.27 It contains provisions relating to the protection of submarine telegraph cablesoutside territorial waters.

The 1958 Geneva Conventions, the first international agreements on the law of thesea, contain provisions on both the protection of submarine cables on the high seas and thefreedom to lay submarine cables in the high seas and on the continental shelf. The 1958Geneva Conventions were based on the 1956 Draft Articles on the Law of the Sea preparedby the International Law Commission (ILC).28

With regard to the protection of submarine cables, there was considerable debateduring the ILC sessions on whether to include the provisions of the 1884 Convention inany codification attempts on the law of the sea. This was part of a larger debate on whetherthe ILC should attempt to codify all aspects of maritime law, particularly when the subjectwas regulated by an existing convention.29 Ultimately, only three articles on the protectionof submarine cables in the 1884 Convention were incorporated into the 1958 High SeasConvention.30 This was because these three articles were considered essential principles onthe law of the sea and, consequently, were necessary to include in any codification efforts.31

The provisions in the 1958 Geneva Conventions on the freedom to lay submarine cables32

were also based on the ILC Draft Articles. Unlike the provisions on the protection of cables,the freedom to lay cables had not previously been codified in any international agreementpossibly due to the fact that the right of states to lay cables outside of territorial watershad never been questioned.33 However, the ILC agreed that it was important to includeprovisions on the freedom to lay cables in any convention on the law of the sea.34

The provisions on the protection and the laying and repair of submarine cables in the1958 Geneva Conventions were reproduced more or less ad verbatim in UNCLOS. UNC-LOS presently has 162 parties35 and for parties to both the UNCLOS and the 1958 GenevaConventions, the former supersedes the latter.36 The UNCLOS provisions on submarinecables are considered customary international law and are consequently binding even onstates which are not parties to UNCLOS. This is because the 1958 Geneva Conventionon the High Seas, which was incorporated into UNCLOS, purported to codify existingcustomary international law at the time.37

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There is a difference of opinion on whether the provisions of the 1884 Convention notincorporated into the 1958 Geneva Conventions and UNCLOS have nevertheless becomecustomary international law and are binding on nonparties.38 The United States certainlyconsiders the provisions of the 1884 Convention as customary international law,39 althoughthe fact that only 40 states have ratified the Convention may undermine this conclusion.40

For purposes of this article, it is assumed that the 1884 Convention is applicable onlybetween states parties and the discussion will focus primarily on the UNCLOS provisionson submarine cables as representing the main legal instrument governing submarine cables.However, some of the provisions in the 1884 Convention “continue to have practical utilityin filling gaps in the UNCLOS legal regime,”41 as will be discussed in the course of thisarticle.

Unlike the 1884 Convention which is confined to telegraph cables, it should be notedthat the 1958 Geneva Conventions and UNCLOS refer generally to “submarine cables” andtherefore would cover both submarine communications cables and power cables.42

Cable Operations: Surveying of Cable Routes and Cable Laying,Repair, and Maintenance Activities

Cable operations in ocean spaces involve several distinct activities. The first type of activityis the surveying of cable routes. A desktop survey is first conducted by marine geologiststo design the optimum route to be surveyed, taking into account landing sites, seabedbathymetry and geology, fishing and anchoring uses, cable and pipeline crossings, permit-ting requirements of coastal states, and other constraints such as boundaries.43 After thedesktop survey, a route survey is undertaken by a cable survey ship in order to “fully char-acterize that route and to avoid hazards and/or environmentally significant zones that mayhave not been identified from existing information.”44 The cable ship surveys “water depthand seabed topography, sediment type and thickness, marine faunal/floral communities,and potential natural or human-made hazards” and “[w]here appropriate, measurements ofcurrents, tides and waves may be needed to evaluate the stability of the seabed, movement ofsediment and ocean conditions that may affect cable-laying and maintenance operations.”45

Soil samples are usually collected where cable protection by burial is planned typically upto a maximum water depth of 1,000 meters.46 Cable installation would not be able to occurwithout the conducting of cable route surveys.47

The second type of activity is cable laying. A cable is laid or deployed along thedesignated route by specially trained crew on specialized cable-laying ships that spool thecable out of huge holding tanks on the ship.48 Cables that are laid in waters of 1,000–1,500nautical miles are typically buried below the seabed either by sea ploughs or remotelyoperated vehicles deployed from the cable ship to protect them from damage by otherseabed users.49 After cables are laid on the seabed and are near land, they cross a beachbefore entering a “beach manhole” where the cable type changes—from there it runs on aroute on land until it reaches the shore terminal building known as a cable landing station.50

The third type of activity is cable repair or maintenance. A cable typically has a lifespan of 15–20 years,51 during which time it may need to be retrieved from the seabedfor repairs or maintenance, which are essential for the effective operation of the cablesystem.52 Repair generally entails the location of the cable, identification of the faultedsection, retrieval of the cable with specially designed grapnels deployed from the repairvessel, and replacement of the section with a new cable.53

There are several competing interests in the surveying of cable routes and the laying,repair, and maintenance of submarine cables (collectively referred to as “cable operations”).

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Cable companies and states dependent on that cable have an interest in ensuring that cableoperations are done as expeditiously as possible. In particular, cable companies need toensure the rapid repair of cable faults. This is because damage to submarine cables canpotentially affect the telecommunications of states54 and can result in extensive costs for thecable companies. Indeed, the average cost of a single repair is between $1 million and $3million.55 Coastal states, on the other hand, seek to regulate cable operations because theyinvolve foreign vessels in areas in which they may have legitimate security and economicinterests.

UNCLOS attempts to resolve these competing tensions in different ways, dependingon whether cable operations are taking place in: (1) maritime zones under the sovereigntyof coastal states (territorial seas or archipelagic waters); (2) maritime zones that are outsidecoastal state sovereignty, but within their national jurisdiction (exclusive economic zone[EEZ] and continental shelf); or (3) maritime zones beyond national jurisdiction (high seasand deep seabed).

Territorial Seas and Archipelagic Waters

Under UNCLOS, a coastal state has sovereignty over a 12-nautical-mile56 belt of sea knownas its territorial sea, which includes the airspace above and the seabed and subsoil below.57

However, such sovereignty must be exercised “subject to this Convention and to other rulesof international law.”58 Under UNCLOS, the main limit to a coastal state’s sovereignty overits territorial sea is that it must allow ships of all states the right of innocent passage.59

Article 21 allows coastal states to impose laws and regulations on innocent passage throughterritorial seas; however, such laws and relations are limited to certain specified subjects.60

Similarly, an archipelagic state61 has sovereignty over the waters enclosed by itsarchipelagic baselines known as archipelagic waters.62 Such sovereignty is exercised subjectto Part IV of UNCLOS, which stipulates that foreign vessels have the same right of innocentpassage through archipelagic waters of archipelagic states as they have through territorialseas.63 There is an express obligation on archipelagic states to respect existing submarinecables laid by other states in its waters and to permit maintenance and replacement of suchcables on receiving due notice.64

Coastal states and archipelagic states clearly have extensive authority to regulate shipsengaged in cable operations (i.e., the surveying of cable routes and the laying, repair,and maintenance of cables) pursuant to their sovereignty over their territorial seas andarchipelagic waters. Indeed, the authority of coastal states to regulate cable route surveys isexpressly recognized by UNCLOS. For example, in territorial seas and archipelagic waters,ships carrying out “survey activities” are not engaged in innocent passage.65 Both coastalstates and archipelagic states are allowed to adopt regulations on innocent passage relatingto “hydrographic surveys” within their territorial seas or archipelagic waters.66 Duringarchipelagic sea-lanes passage in archipelagic waters, foreign ships (including hydrographicsurvey ships) may not carry out any “survey activities” without the prior authorization ofthe archipelagic state.67 While “survey activities” and “hydrographic surveys”68 are notdefined and appear to be used interchangeably,69 it is reasonably clear that cable routesurveys would fall within the definition of “survey activities.”

Problems in Law and Practice of Cable Operations within Territorial Waters. Coastalstates usually regulate cable operations within their territorial seas or archipelagic waters(“territorial waters”) by requiring cable companies to obtain permits or licenses before suchoperations can take place. While there is nothing wrong with such permits per se and they are

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consistent with the coastal state’s rights in territorial waters, the procedures for applicationfor permits for cable operations in some states can often delay both laying and repairoperations. Many states require licenses from the national telecommunications authority tosurvey a cable route or lay a submarine cable,70 which can take several months, dependingon the state.71 Other permits may also be necessary, including defense or national securityauthorizations, environmental permits, aand permits for construction and land use.72 Inaddition, the approval of the relevant maritime authority for designation of the cable route interritorial waters may be necessary before laying operations commence.73 Such permittingprocedures can significantly delay laying operations.74 In some states, there are also onerouspermitting requirements for repairs of cables within territorial waters, which as mentionedabove, are even more time sensitive and urgent.75

The lack of a lead agency that is overall in charge of the coordination of applicationprocedures may exacerbate the situation.76 Another issue is that it can be difficult to ascertainthe relevant procedures for the application of permits for laying and repair of cables. Forexample, in Hong Kong, it has been observed that “the [cable] industry may find it difficultto get hold of necessary information in respect of the application procedures and statutoryapprovals for landing a new submarine cable in Hong Kong.”77

Adding to the lengthy and unpredictable permitting processes are conditions imposedby coastal states as part of the permitting process. For example, a common conditionimposed as part of the permitting process is to undertake an environmental impact assess-ment (EIA) on the impact on the seabed before cable-laying or repair activities can takeplace.78 The types of EIAs required range from “provision of relevant technical informationand a statement of compliance with environmental accreditation, to a brief environmen-tal review, to a comprehensive analysis that includes formal public and/or governmentalconsultation.”79 Depending on the type of information required, an EIA has the potential todelay cable-laying operations significantly.80

Article 206 of UNCLOS places an obligation on states to carry out EIAs “if theyhave reasonable grounds for believing that planned activities under their jurisdiction orcontrol may cause substantial pollution of or significant and harmful changes to the marineenvironment” (emphasis added). However, based on a recent report produced jointly by theUnited Nations Environment Programme (UNEP) and the International Cable ProtectionCommittee (ICPC), submarine cables do not cause substantial pollution81 or significant andharmful changes to the marine environment. The UNEP/ICPC Report concluded that the“small physical size of a telecommunications cable implies that its environmental footprintis likely to be small and local . . . and that this has been borne out by several studies.”82

Further, it states that the laying and repair activities also cause minimal disturbance to theseabed, even when the cables are buried.83 Such conclusions call into question the need forthe comprehensive EIA that some states require before cable operations can take place.

A more uncommon type of condition imposed as part of the permitting processesin territorial waters is the requirement that either the crew or vessel carrying out cableoperations have the same nationality as the coastal state. This has been the inadvertenteffect of Indonesia’s 2008 Cabotage Regulations. In a bid to boost its shipping industry,Indonesia introduced Cabotage Regulations that allow only Indonesian-flagged vessels tocarry cargo or passengers from one Indonesian port to another which would have coveredvessels carrying out cable operations.84 The concerns of the oil and gas industry that the lackof Indonesian vessels able to carry out the highly specialized operations of hydrocarbonexploration and exploitation,85 and the potential impact on the Indonesian economy,86

resulted in an amendment to the 2008 Cabotage Regulations. The amendment allowsforeign vessels to carry out specified activities in Indonesian waters on certain conditions.

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This included “offshore construction activities,”87 which was defined as “derrick/crane,pipe/cable/subsea umbilical riser flexible laying barge/vessels.”88 This would appear tocover cable ships. To rely on the exemption, however, foreign vessel owners must meetseveral conditions,89 including having to show that: (1) a minimum one-time effort hasbeen made to procure an Indonesian-flagged vessel or, if it is unable to do so, to enter intoa charter with a national shipping company;90 and (2) that the owners of the foreign vesselhave submitted certain documents, including a work plan and schedule of activities, a charterparty between national sea transport companies and foreign shipowners (if applicable), andthe relevant certificates of the vessel. Once the permit is granted, it lasts for a periodof only three months, although this can be extended by the Ministry of Transportation’sdirector-general of sea communications.91 While the exemption has been welcomed bycable companies, it is reportedly applicable only until December 2013, after which thecabotage regulations will again apply.92

Even with the exemption for cable ships, getting permits for cable installation andrepair in Indonesian waters currently takes considerable time in view of the conditionsthat have to be met. With the exemption reportedly coming to an end in December 2013,Indonesia’s cabotage regulations will further restrict cable-laying and repair operations inIndonesian waters. Cable companies and neighboring states have every reason to be con-cerned, considering that Indonesian archipelagic waters are the home to numerous cablesthat directly serve not only Indonesia but also Australia, India, Malaysia, Myanmar, Singa-pore, South Africa, and Thailand.93 It has been said that “the restrictions’ unintended effectsthreaten to create significant delays and costs for deploying cable ships to install, maintainand repair the undersea cables on which Indonesia and its neighbours depend.”94 Indeed,considering that Indonesia presently does not have any cable ships, and that cable shipsare highly specialized purpose-built vessels not directly in competition with the Indonesianmaritime sector, Indonesia should reconsider the application of its 2008 Cabotage Law tocable ships.

The Way Forward. The permitting processes and conditions described above can result inunnecessary delays and costs in cable-laying and repair operations. This in turn may affectinternational communications. While cable companies can plan their laying operations(including the surveying of cable routes) to take into account the permit time required by aparticular state, the repair of cables is time sensitive. A cable fault in one state’s territorialwaters may cause undue disruptions to the telecommunications of other states and quickrepair is essential to restore communications.

In a bid to avoid excessive permitting requirements (particularly for the repair of ca-bles), cable companies have argued that cable ships engaged in the repair and maintenanceof submarine cables in territorial seas are exercising the right of innocent passage underUNCLOS.95 In principle, this would mean that coastal states cannot interfere with or reg-ulate the passage of such cable ships except as set out in Article 21 of UNCLOS, whichcircumscribes the extent of coastal state regulation on innocent passage. One can understandwhy cable companies would make this argument. The innocent passage regime applicablein territorial waters is necessary for navigation and, hence, international communications.96

Arguably, the repair of submarine cables is equally importantly to international communi-cations; therefore, cable repair ships should be afforded the same right of innocent passage.However, based on a strict reading of the definition of innocent passage in Article 19, thisargument is not legally tenable.97 The passage of cable repair ships will not be “continuousand expeditious”98 as required under UNCLOS and, arguably, the vessels will be engaging

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in an “activity not having a direct bearing on passage,”99 which under UNCLOS renderspassage noninnocent.

That said, the issues faced by cable companies in territorial waters raise interestingquestions on the limits of a coastal state’s competence to prescribe regulations in its territo-rial waters. Both customary international law and UNCLOS recognize that pursuant to thecoastal state’s sovereignty within territorial waters, it is authorized to prescribe regulationsto be observed by vessels in the territorial sea subject to the right of innocent passage.Accordingly, the problems discussed above (i.e., lengthy and unpredictable permit regula-tions), onerous EIA obligations, and cabotage laws such as those imposed by Indonesia areall, in principle, consistent with UNCLOS. However, the purpose of the law of the sea isto strike a balance between competing interests and uses in the ocean. Accordingly, from apolicy and “rule of law” perspective, it is essential that “regulations prescribed by coastalStates should relate to genuine coastal interests” and that the impact of such regulations onthe inclusive use of the area should be taken into account.100

Accordingly, the legitimacy and necessity of regulations imposed by coastal stateson cable operations should be evaluated by examining: (1) the coastal state’s interest thatsuch regulations seek to protect; (2) whether the regulations genuinely protect this interest;and (3) the impact of such regulations on common interests or goods such as internationalcommunications.

Applying this approach, permits for foreign vessels carrying out cable operations interritorial waters are legitimate manifestations of the security concerns of coastal states.However, the quick deployment and repair of cables is in the common interest of allstates. Particularly with regard to repairs, coastal states should adopt procedures that, whilemeeting their minimum security concerns, also recognize the urgency and importance of therepair of cables. For example, coastal states may consider preclearing cable ships designatedfor such repairs101 since cable ships and their base ports are known and cable repair shipsremain in the same location during the repair.102 Similarly, while coastal states have aninterest in protecting the marine environment, coastal states should examine and considerthe actual impact of cables on the seabed rather than imposing unnecessary and burdensomeEIA obligations. Lastly, applying rules such as Indonesia’s Cabotage Regulations to cableships will not result in a substantial boost to the Indonesian shipping industry or maritimetrade considering that such ships are not in direct competition with Indonesian-flaggedvessels.

The EEZ and Continental Shelf

Since the laying of the first telegraph cable in 1850, the freedom to lay submarine cables inthe high seas has been unchallenged103 and subsequently recognized in the 1958 Conventionon the High Seas and UNCLOS. However, such freedoms had to be modified in order toaccommodate the interests of both coastal states and noncoastal states in the EEZ andcontinental shelf. Under Article 56 of UNCLOS, the 200-nautical-mile EEZ gives coastalstates sovereign rights for the exploration and exploitation of living and nonliving naturalresources of the waters superjacent to the seabed and of the seabed and subsoil.104 A coastalstate also has jurisdiction as provided for in UNCLOS over artificial islands, installations,and structures; marine scientific research; and the protection and preservation of the marineenvironment in its EEZ.105

For the continental shelf, on the other hand, a coastal state has “sovereign rights for thepurpose of exploring it and exploiting its natural resources,”106 which include “mineral andother non-living resources of the seabed and subsoil.” The “continental shelf” is defined

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as “the seabed and subsoil of the submarine areas that extend beyond its territorial seathroughout the natural prolongation of its land territory to the outer edge of the continentalmargin.”107 A coastal state has a continental shelf up to a distance of 200 nautical miles or,if the outer edge of its continental margin extends beyond 200 nautical miles,108 it has whatis known as an extended continental shelf.109

There are two distinct legal bases for coastal state rights in relation to the seabedoutside of territorial sovereignty. First, the EEZ gives the coastal state sovereign rights forthe purpose of exploring and exploiting the nonliving natural resources of the seabed and itssubsoil.110 Second, the continental shelf regime ensures coastal state sovereign rights overits continental shelf for the purpose of exploring it and exploiting its natural resources, whichinclude mineral and other nonliving resources of the seabed and subsoil.111 The EEZ regimeand continental shelf regime within 200 nautical miles will usually apply concurrently tothe same geographical area.112 In recognition of this, Article 56(3) of UNCLOS providesthat the rights set out in the EEZ with respect to the seabed and subsoil are to be exercisedin accordance with Part VI on the continental shelf.

Freedom to Lay, Repair, and Maintain Cables in the EEZ and Continental Shelf UnderUNCLOS. UNCLOS recognizes the freedom to lay submarine cables in the EEZ and onthe continental shelf. In the EEZ, Article 58 states that other states enjoy the specificfreedoms of the high seas referred to in Article 87:

1. In the exclusive economic zone, all States, whether coastal or land-locked,enjoy, subject to the relevant provisions of this Convention, the freedoms re-ferred to in article 87 of navigation and overflight and of the laying of submarinecables and pipelines, and other internationally lawful uses of the sea related tothese freedoms, such as those associated with the operation of ships, aircraftand submarine cables and pipelines, and compatible with the other provisionsof this Convention. (emphasis added)

Article 87 provides that freedoms of the high seas include the “freedom to lay submarinecables and pipelines, subject to Part VI.”113 On the continental shelf, Article 79(1) providesthat “[a]ll States are entitled to lay submarine cables and pipelines on the continental shelfin accordance with the provisions of this article.”

With regard to the repair and maintenance of submarine cables, these activities would beconsidered “other internationally lawful uses of the sea related to these freedoms . . . suchas those associated with the operation of . . . submarine cables” in the EEZ as stated inArticle 58.114 On the continental shelf, although Article 79(1) does not refer to the repairand maintenance of submarine cables, the rest of Article 79 assumes that the right to laysubmarine cables includes the right to maintain and repair them.115

With regard to cable route surveys, this activity should also be considered as an“internationally lawful use of the sea related to the operation of submarine cables”116

recognized as a high seas freedom in the EEZ. However, the right to conduct cable routesurveys in the EEZ appears to be a casualty of the long-standing debate on the permissibilityof surveys in the EEZ. Some states consider surveys such as hydrographic surveys andmilitary surveys as part of the “other internationally lawful uses of the sea related to [highseas] freedoms, such as those associated with the operation of ships” given to other states inthe EEZ and hence not subject to coastal state consent.117 Other states have argued that anytype of survey, including hydrographic surveys and military surveys, are a form of marinescientific research and therefore are subject to coastal state consent provided for in Article

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56(1)(b)(ii) and Article 246 of UNCLOS.118 Although there is no definition of marinescientific research in UNCLOS, marine scientific research is consistently distinguished fromsurveys.119 It is argued that the separate treatment given by UNCLOS to these two activitiesshould be interpreted to mean that surveys are distinct from and therefore not subject to themarine scientific research regime.120 Indeed, there is an even stronger argument that cableroute surveys, which have the specific purpose of collecting certain types of data to ensurethe optimum selection of a cable route, should not be considered marine scientific research.

At this juncture, it should be mentioned that UNCLOS gives the right to conduct cableoperations in the EEZ and continental shelf to “All States.” It has been noted that theexpression “All States” in Article 79 should not be read restrictively as “in practice manysubmarine cables and pipelines are privately owned and are laid by corporations or otherprivate entities. The term therefore refers to the right of States or their nationals to laycables and pipelines.”121

Obligations of States Conducting Cable Operations in the EEZ and Continental Shelf.States that wish to survey cable routes or lay, repair, and maintain submarine cables on theseabed of the EEZ and continental shelf have certain obligations under UNCLOS. First,such states must have due regard to the cables or pipelines already in position and must notprejudice the possibilities of repairing existing cables or pipelines.122

Second, states exercising the right to conduct cable route surveys, and lay and repaircables in the EEZ and hence on the continental shelf to the extent that it overlaps withthe EEZ,123 are to have due regard to the rights and duties of the coastal state.124 The“rights and duties of the coastal State” refers to the rights and duties in Article 56 (aselaborated on in other provisions of UNCLOS), namely, rights over the exploration andexploitation of: living resources; nonliving resources; other economic resources such as theproduction of energy from the water, currents, and winds; jurisdiction over artificial islands,installations, and structures; jurisdiction over marine scientific research; and jurisdictionover the protection and preservation of the marine environment and the consequent dutiesthat accompany such jurisdiction.

Third, states conducting cable operations “shall comply with the laws and regulationsadopted by the coastal state in accordance with the provisions of this Convention and otherrules of international law in so far as they are not incompatible with this Part.”125 The criticalquestion is what “laws and regulations” can a coastal state impose on cable operations inthe EEZ and continental shelf.

Coastal State Laws and Regulations on Cable Operations in the EEZ and Continental Shelf.UNCLOS has substantive provisions on the type of regulations coastal states may adoptas well as procedural obligations that must be complied with if regulations are adopted.Article 79 (2) of UNCLOS states:

Subject to its right to take reasonable measures for the exploration of thecontinental shelf, the exploitation of its natural resources and the prevention,reduction and control of pollution from pipelines, the coastal State may notimpede the laying or maintenance of such cables or pipelines.

Article 79(2) suggests that a coastal state may subject cable operations only to its rightto take reasonable measures for: (1) the exploration of the continental shelf; and (2) theexploitation of its natural resources. Article 79(2) draws a distinction between submarinecables and pipelines. For pipelines, a coastal state may not impede the laying or maintenance

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of pipelines subject to its right to take reasonable measures for: (1) the exploration of thecontinental shelf; (2) the exploitation of its natural resources; and (3) the prevention,reduction, and control of pollution from pipelines.126 The omission of submarine cablesfrom this last measure suggests that a coastal state cannot subject the laying, maintenance,and repair of submarine cables to such measures.127

Regulations that may not be adopted by coastal states are regulations on the delineationof the cable route. Article 79(3) of UNCLOS provides that “the delineation of the coursefor the laying of such pipelines on the continental shelf is subject to the consent of thecoastal State.” The implication is that the delineation of the course for submarine cablesis not subject to the consent of the coastal state. This interpretation is supported by thelegislative history of the provision.128

As mentioned above, UNCLOS also imposes certain procedural obligations on thecoastal state when imposing resource-related measures on laying, repair, and maintenanceof cables in the EEZ and continental shelf. First, these measures must be “reasonable.”While it is not clear what is meant by “reasonable,” “no more definite criterion than thatof reasonableness could be established for the measures which coastal states may take, forthe reason that it was impossible to foresee all situations that might arise in the applicationof this article.”129 Second, in the EEZ, a coastal state must have due regard to the rightsand duties of other states and shall act in a manner compatible with the provisions ofUNCLOS.130 Third, on the continental shelf, a coastal state must not exercise its rights ina manner that will infringe or result in “any unjustifiable interference” with navigation andother rights and freedoms of other states as provided for in UNCLOS.131

Notwithstanding the above procedural obligations on coastal states, Article 79(4)provides that nothing in Part VI (on the continental shelf) affects the right of the coastalstate to establish conditions for cables or pipelines entering its territorial sea. This relatesto the coastal state’s sovereignty over its territory and territorial sea.132 It has been said thatthe purpose of this provision is to ensure that:

The restrictions in article 79 on the right of a coastal State to regulate cables onthe continental shelf [where it has sovereign rights but not sovereignty] doesnot affect the more extensive rights of the coastal State to impose additionalconditions on cables which enter its territory or territorial sea [where it hassovereignty].133

If coastal states impose additional conditions, apart from those related to the explo-ration and exploitation of their resources, on the laying or repair of a submarine ca-ble that falls both on its continental shelf and on the seabed of its territorial sea,then the conditions would apply to only the part of the cable located in the territo-rial sea.134 Coastal states still have jurisdiction over cables and pipelines constructed orused in connection with the exploration of its continental shelf; the exploitation of itsresources; or the operations of artificial islands, installations, and structures under itsjurisdiction.135

Problems in Law and Practice on the Regulation of Cable Operations in the EEZ andContinental Shelf. Coastal states have adopted different types of laws and regulations forcable operations in the EEZ and continental shelf, some of which are arguably inconsistentwith UNCLOS. At one end of the spectrum are laws that are clearly contrary to UNCLOSas they are unrelated to any resource rights the coastal state may have in the EEZ andcontinental shelf. An example of this is the imposition by coastal states on cable operators

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or owners of an annual fee for cables that do not enter its territorial waters or contiguouszone.136

Regulations requiring a coastal state’s consent for the delineation of cable routes arealso commonly adopted.137 Coastal states may argue that the delineation of cable routes isa reasonable measure relating to their resource exploration and exploitation rights in theEEZ and on the continental shelf as they need to ensure minimum interference with theseactivities.138 However, this is clearly inconsistent with the express wording of UNCLOS,which states that only the delineation of pipelines is subject to coastal state consent.139 Inpractice, coastal states should bear in mind that cable companies have every incentive toavoid areas in which there are intensive competing uses. Accordingly, the desktop surveysand cable route surveys done prior to designating a cable route take into account fishing andanchoring uses and other environmental considerations and, hence, any potential conflictswith competing uses and interests should be minimized.140

Another example of arguably excessive regulations is the requirement imposed bystates such as China and India that cable companies apply for permits before they cansurvey cable routes and lay or repair submarine cables on their continental shelves.141

Not only are these permit requirements inconsistent with UNCLOS but these permittingprocesses lack transparency and are complicated, thus causing delay to laying operationsand more importantly to the repair of cables. While China allows a repair vessel to start itsjourney to the repair site while repair permits are being obtained from the State OceanicAdministration (SOA),142 India’s permits for repair can reportedly take up to 32 days andinvolve getting licenses from seven different sources.143

States may argue that permits are “reasonable measures” for the exploration of thecontinental shelf and the exploitation of its natural resources allowed under Article 79(2)of UNCLOS.144 They could argue that permits are necessary to ascertain that foreign cablesurvey or laying and repair ships are not engaging in exploration or exploitation activitiesand to ensure that cable surveying, laying, and repairing activities do not interfere withfishing, hydrocarbon exploration, or exploitation activities and vice versa. However, cablecompanies take the position that such permits are prima facie inconsistent with the freedomto lay submarine cables and conduct operations associated with submarine cables in theEEZ and continental shelf recognized in UNCLOS.145 Further, such permits, particularlythose that are lengthy and complicated, arguably do not meet the procedural obligationsthat coastal states have when imposing such measures (i.e., they are not reasonable),146

are contrary to the obligation of exercising “due regard” to the rights of other states in theEEZ,147 and also constitute “unjustifiable interference” with other rights and freedoms ofother states under UNCLOS.148

Another recent trend that has an impact on the freedom to lay, repair, and maintainsubmarine cables is the tendency of coastal states to designate areas outside of territo-rial waters as marine protected areas (MPAs)149 or conservation areas. For example, theUnited Kingdom has designated Special Areas of Conservation (SACs) outside its territo-rial sea.150 The UK authorities have sought to control the routing of one new submarinecable system initially planned to enter the SAC.151 Another example is the proposal by U.S.authorities to expand a critical habitat for the endangered leatherback sea turtle in the EEZoff the coast of the United States.152 While the exact impact on cable laying and repairoperations is unknown as the proposal is still under discussion, the North American Sub-marine Cable Association (NASCA) has raised a concern that the proposed “critical habitatdesignation would impose substantial additional permitting costs and delays on underseacable operators without any corresponding interest in the protection of leatherback seaturtles.”153

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This raises questions on the extent to which coastal states can impose environmentalmeasures on cable operations in the EEZ and on the continental shelf. The EEZ regimegives coastal states jurisdiction over the protection and preservation of the marine envi-ronment in its EEZ as set out in Part XII on the protection and preservation of the marineenvironment.154 The rights and obligations in Part XII relate to coastal state jurisdiction toprevent pollution from land-based sources, seabed activities, dumping, vessels, and throughthe atmosphere. With regard to seabed activities, Article 208 states that:

Coastal States shall adopt laws and regulations to prevent, reduce and controlpollution of the marine environment arising from or in connection with seabedactivities subject to their jurisdiction and from artificial islands, installationsand structures under their jurisdiction pursuant to article 60 and 80. (emphasisadded)

There are strong grounds for arguing that a coastal state may not impose environmentalmeasures on cable operations in the EEZ and continental shelf apart from the measures toprevent pollution that would apply to all ships including cable ships.155 First, as mentionedabove, neither submarine cables nor laying and repair activities cause “pollution” (as definedin Article 1 of UNCLOS)156 to the environment and, accordingly, the Article 208 obligationto adopt laws and regulations to control pollution on the seabed do not apply. Second, cablelaying and repair operations are not “seabed activities subject to their jurisdiction” underArticle 208, but are instead one of the freedoms of other states recognized in the EEZ andcontinental shelf.157 Third, as mentioned above, Article 79(2) of UNCLOS suggests thata coastal state may subject the laying and repair of cables on its continental shelf to onlyreasonable measures related to the exploration of the continental shelf and exploitation of itsnatural resources and that only pipelines may be subject to pollution prevention, reductionand control measures.

With regard to the designation of MPAs (and similar designations) by coastal states,UNCLOS arguably provides the basis for MPAs under Article 194(5):

The measures taken in accordance with [Part XII on the protection of the marineenvironment] shall include those necessary to protect and preserve rare or fragileecosystems as well as the habitat of depleted, threatened or endangered speciesand other forms of marine life.

However, any measures taken must be consistent with the UNCLOS.158 In taking suchmeasures, states must also refrain from unjustifiable interference with activities carried outby other states in the exercise of their rights and in pursuance of their duties in conformitywith UNCLOS.159 Based on the discussion above, it can be argued that measures to protectthe environment (including the designation of marine protected areas) should not includemeasures restricting the freedom to lay and repair cables outside of territorial waters. Inany event, there may be no practical basis to do so, in view of the UNEP/ICPC Report thatsubmarine cables have a minimum impact on the seabed. There is no reason why cablesand marine protected areas are mutually exclusive.160

Of course, states exercising the right to lay and repair cables must exercise due regardto the rights and duties of the coastal state, including those rights and duties related to themarine environment.161 However, this is an obligation on other states undertaking activitiesin the EEZ to take into consideration the coastal state’s rights and duties with regard toits jurisdiction over the protection and preservation of the marine environment. It does not

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translate into coastal state authority to impose environmental measures on cable operationsin the EEZ and continental shelf.

The Way Forward. The above examples of coastal state regulation on cable operations inthe EEZ can be seen as part of a wider trend of what has been called the “territorialisation”or “creeping jurisdiction” of coastal states in the EEZ.162 This can also be attributed tothe “constructive ambiguities” of UNCLOS that have left much room for debate on itsinterpretation.163 For example, there is uncertainty on what is meant by “other interna-tionally lawful uses of the sea related to these freedoms, such as those associated with theoperation of ships, aircraft and submarine cables” in Article 58(1) and “reasonable measuresfor the exploration of the continental shelf, the exploitation of its natural resources” in Arti-cle 79(2). Coastal states will naturally utilize such ambiguity to push their own claims andinterests. Similarly, other states or cable companies will also capitalize on the ambiguity toadvance arguments that maximize their positions. The underlying issue is how coastal statescan protect their legitimate rights and interests in the EEZ and continental shelf and, in theprocess, avoid imposing excessive regulations on laying and repair operations contrary toUNCLOS and to the common interest in facilitating international communications.

The answer may lie in the procedural164 obligation placed on both coastal states andother states to exercise “due regard” for each other’s rights and duties in the EEZ.165

The due regard obligation is said to be “an express recognition of the general need for theaccommodation of uses”166 and involves a “balancing” of the rights, jurisdiction, and dutiesof the coastal state with the rights and duties of other states in the EEZ.167

The question is about what steps a state has to take to fulfill its due regard obligationso that it is not just an ideal but also serves as a practical tool in resolving disputes aboutconflicting uses. Churchill and Lowe have stated that, when there is a potential conflictbetween two uses, due regard means that “there should be a case-by-case weighing of theactual interests involved in the circumstances in question, in order to determine which useis more reasonable in that particular case.”168 Indeed, it has also been noted that due regard“consists of two elements: an awareness of and consideration for other state’s interests anda weighting of those interests or sources of authority.”169

There is no doubt that the due regard obligation logically entails the first step; that is,it requires the consideration of the other state’s interest. However, the second step (i.e., theweighting of interests or sources of authority) inherently involves an evaluation of whetherthe coastal state or other states have the superior right. For example, some have arguedthat the due regard obligation should be interpreted as giving the coastal state “indisputablesovereignty when conflicts arise between the rights of coastal States and other States” andthat “as between the exercise of the exclusive rights by the coastal State and the enjoymentof navigational freedoms, priority should be given to the coastal State.”170 The contraryargument is that:

[T]he sovereign rights and jurisdiction of the coastal State are superior only inmatters pertaining to the rights granted to it in the EEZ. Without a doubt,the coastal State has an unsurpassed right when it comes to fishing andother resource-related activities. The rights of the international communityare greater, however, in all other matters. . . . 171

Again, the debate boils down to who has the better right in the EEZ, which at times can becounterproductive. Each side will insist on their own interpretation, unwilling to recognizethe merits of the other side’s position.

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“[W]eighting interests and sources of authority,” as suggested above, is arguably notwhat the International Court of Justice had in mind in the 1974 Fisheries JurisdictionCase.172 In this case, the Court had to consider the unilateral extension of Iceland’s fishinglimits from 12 nautical miles to 50 nautical miles from its baselines and the accompanyingprohibition of all foreign fishing activities in those limits vis-a-vis the United Kingdom’salleged historic fishing rights in that area. The Court found that the principle of “reasonableregard” in Article 2 of the 1958 High Seas Convention (the predecessor to due regard)required that both Iceland and the United Kingdom have due regard to each other’s interests,and to the interests of other states, in fishery resources.173 Accordingly, Iceland’s unilateralaction in extending its fishing limits and the manner of implementation of such limitsconstituted an infringement of the principle of reasonable regard in Article 2.174 The Courtwent on to say that Iceland’s preferential fishing rights (as a state especially dependent oncoastal fisheries) and the United Kingdom’s historic or traditional fishing rights must be“reconciled”175 and must continue to coexist.176 Neither of these rights were absolute177 and“both States have an obligation to take full account of each other’s rights and of any fisheryconservation measures the necessity of which is shown to exist in those waters.”178 The Courtalso found that the most appropriate method for the solution of the dispute was negotiation179

and that the two countries should conduct their negotiations on the basis that each must ingood faith pay reasonable regard to the legal right of the other, to the facts of the particularsituation, and to the interests of other states with established fishing rights in the area.180

In light of this, a wider, more purposive interpretation of the due regard obligation,reflecting “the spirit of mutual understanding and co-operation” in the Preamble of UNC-LOS, is that it requires consideration of each other’s legitimate interests under UNCLOSand imposes a duty of cooperation to ensure minimum conflict with each other’s interests.While this duty of cooperation is not explicitly mentioned in UNCLOS in relation to the dueregard obligation in the EEZ, international case law has found a duty to cooperate implicitin certain UNCLOS provisions, despite there being no express duty. For example, in boththe MOX/Plant Case181 and the Land Reclamation Case,182 the International Tribunal forthe Law of the Sea (ITLOS) imposed measures of cooperation on the concerned states onthe basis of a general duty of cooperation in relation to the protection and preservationof the marine environment under Part XII of UNCLOS. Similarly, the Arbitral Tribunalin Guyana v. Suriname Arbitration found that Article 83(3) of UNCLOS on provisionalarrangements of a practical nature imposed an obligation to cooperate between states inareas of overlapping claims pending final delimitation.183 Based on the above cases, theduty of cooperation entails consultation as well as the exchange of information betweenthe states concerned.184

With regard to cable operations in the EEZ and continental shelf, the above interpre-tation of due regard would mean that cable companies and coastal states should take intoconsideration each other’s rights and interests in the EEZ and cooperate with each otherto minimize conflicts. In practical terms, it means that cable companies must consult withcoastal states on route selection and must notify (but not be required to seek consent from)coastal states on their surveying, laying, and repair activities so as to minimize interferencewith the rights and interests of coastal states.185 Likewise, coastal states must keep cablecompanies informed of activities under their jurisdiction and control that may impact cableoperations. Any disagreements should be worked out through negotiation and consultation.

The High Seas and Deep Seabed

The high seas and deep seabed are areas beyond the national jurisdiction of any state. Thelatter is termed “the Area” under UNCLOS and is defined as “the seabed and ocean floor

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and subsoil thereof, beyond the limits of national jurisdiction.”186 UNCLOS has created acomplicated regime in Part XI to govern the exploration and exploitation of the mineralresources of the Area,187 which includes the establishment of the International SeabedAuthority (ISBA) to regulate exploration and exploitation activities.188

The water column over the Area is considered the high seas. Accordingly, Article87 freedoms apply, including the freedom to lay submarine cables.189 Article 112(1) ofUNCLOS recognizes that states are entitled to lay submarine cables on the bed of the highseas beyond the continental shelf, which refers to the Area.

However, there are obligations on states that lay submarine cables on the deep seabedor high seas. First, Article 112(2) requires states to have due regard to cables alreadyin position and not to prejudice the possibility of repairing existing cables or pipelines.Second, Article 87(2) requires that the freedom to lay submarine cables be exercised withdue regard for the interests of other states in their exercise of high sea freedoms and alsowith due regard for the rights under UNCLOS with respect to activities in the Area.

There is a potential for conflict between the laying and repair of cables and ocean min-eral extraction and future methane hydrate exploitation in the Area.190 Under UNCLOS, theright to lay and repair cables has to be exercised with due regard to activities in the Area.191

While the ISBA does not have authority to regulate submarine cables, as it is unconnectedwith the exploitation of seabed resources,192 both the ISBA and ICPC have recognizedthe need for cooperation in the use of the Area. They recently signed a memorandum ofunderstanding to enhance cooperation on the use of the Area, which includes exchanginginformation on cable routings and prospecting and exploration areas,193 and the ICPC hasalso requested observer status at the ISBA.194

The Protection of Submarine Cables

An integral component of maintaining the integrity of international communications is theprotection of submarine cables. Two aspects of the protection of submarine cables willbe discussed here: first, the protection of cable ships engaged in cable operations frominterference; and, second, the protection of submarine cables from damage or breakage.Compared to states’ regulation of cable operations, the protection of cable ships and cablessuffers from the opposite problem–a lack of regulation to protect cable ships and cables.

Protection of Cable Ships from Interference with Competing Activities

With the increasingly intense use of the ocean by multiple activities, cable operations oftenrisk being interfered with or hampered by competing uses of the ocean. In particular, theurgency of cable repair operations and the fact that other users have little opportunity foradvance notice mean that repair operations have the potential to come into conflict withother uses of the sea. Frequently, fishing vessels come close to cable ships and, in manycases, nearly collide with the cable ship.195 A more extreme example of conflict can beseen in the recent case of fishermen deliberately interfering with cable repair operationsthat took place within French territorial waters in order to receive financial compensationfrom the cable companies.196

UNCLOS does not contain any provisions requiring other vessels to keep a minimumdistance away from cable ships engaged in cable operations. Articles V and VI of the1884 Convention,197 on the other hand, require that masters keep their vessels, fishing gear,and nets 1 nautical mile away from vessels engaged in repair operations and one-quarternautical mile from buoys that show that cables are being laid or repaired. However, this

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applies only to state parties to the 1884 Convention and is also only applicable outsideterritorial waters.

The 1972 COLREGS provide that a vessel engaged in laying, servicing, or pickingup a submarine cable (a cable ship) is considered a “vessel restricted in their ability tomanoeuvre.”198 The COLREGS contain provisions on the signals and sounds to be exhibitedby a cable ship so that other vessels are aware of what it is doing.199 The regulations alsorequire both power-driven vessels and vessels engaged in fishing to keep out of the wayof such vessels.200 The COLREGS are applicable within territorial waters and outsideterritorial waters. Unfortunately, while cable ships strictly comply with these rules, coastalstates do not often enforce such rules and fishing vessels in particular frequently ignorethese rules especially if the operations are taking in place in a fishing area.

There has been a call from the cable industry for the International Maritime Orga-nization (IMO) to review the COLREGS and adopt a minimum distance of 1 nauticalmile between cable ships and other ships similar to what is in Article V of the 1884Convention.201 A minimum distance of 1 nautical mile would ensure that the cable beinglaid or repaired and the fishing line or net will not become entangled.202 However, whetherthe member states of the IMO have the political will to adopt this initiative remains tobe seen. Further, the success of such a rule in actually minimizing interference with cableships would depend to a large extent on coastal state and flag state enforcement.

Protection of Submarine Cables from Damage from Competing Uses

Submarine cables are vulnerable to a variety of threats from competing uses such as fishing,shipping, and resource exploration and exploitation activities. The majority of cable faultsare caused by “external human aggression;” namely, fishing (an estimated 44.4% of faults)and anchoring (an estimated 14.6%).203 Most faults occur near land in water depths of lessthan 100 meters.204

Territorial Seas and Archipelagic Waters. Coastal states and archipelagic states have aright to adopt laws and regulations relating to innocent passage through their territorialsea and archipelagic waters with respect to the protection of cables and have a generalcompetence to enact laws to protect submarine cables within territorial waters.205 However,there is no obligation in UNCLOS on coastal states to adopt laws and regulations to protectsubmarine cables within territorial waters. It was assumed that coastal states would haveevery incentive to enact legislation to protect cables that either land in their territory ortransit their territorial waters.206

However, many states do not have sufficient laws and regulations to protect submarinecables from damage by competing uses within territorial waters. Deficiencies include:the failure to criminalize damage to submarine cables within territorial waters (whetherintentional or negligent)207 or the imposition of inadequate provisions for damages tocompensate the owners for the cost of repairs.208

An interesting development in response to the need to protect submarine cables is theestablishment by some states of cable protection areas such as submarine cable corridors209

or cable protection zones,210 which have varying types of protection from competingactivities.211

Submarine cable corridors are designated around submarine cables routes and areof varying lengths,212 although they generally appear to be much narrower than cableprotection zones.213 Different types of measures are used to protect submarine cables

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within submarine cable corridors and they include the prohibition or restriction of certainactivities such as fishing, anchoring, and dredging.214

Cable protection zones have been adopted by both Australia and New Zealand.215

Australia’s legislation allows the Australian Communications Media Authority (ACMA) toestablish a protection zone in relation to submarine cables installed in Australian waters.216

Before establishing a cable protection zone, the proposal is subject to public consultationwith potentially affected groups.217 The ACMA can declare a protection zone only if thecable is of national significance.218 A range of activities can be prohibited in the protectionzone219 and other activities may be significantly restricted.220 The legislation providesfor significant criminal penalties for both intentional221 and negligent damage.222 It alsoprovides for civil compensation to a person who has suffered direct or indirect loss ordamage as a result of conduct by another person in a protection zone.223 Interestingly, theACMA must consider the impact of a new cable installation on the marine environment ina protection zone.224

New Zealand’s legislation allows for the establishment of cable protection zones withinthe internal waters, territorial sea, and EEZ of New Zealand.225 Fishing and shippingactivities are prohibited within the zone.226 The legislation provides for specific offensesin relation to the protected areas along with hefty fines227 and specific enforcement powersrelating to offenses within the protected zones.228

Both New Zealand’s and Australia’s legislation have been described as examples of an“integrated approach to the management of competing ocean uses through zoning”229 andthere have been calls for other states to adopt similar cable protection legislation.230

The EEZ and Continental Shelf. Articles 113–115 of UNCLOS address the protection ofsubmarine cables on the high seas and are based on three articles in the 1884 Convention.231

These provisions are also applicable in the EEZ under Article 58(2) as well as on thecontinental shelf.232

Article 113 requires states to adopt laws and regulations that provide that the breakingor injury by a ship flying its flag or by a person subject to its jurisdiction of a submarinecable beneath the high seas done willfully or through culpable negligence is a punishableoffense.233 Such laws and regulations apply to conduct calculated or likely to result in suchbreaking or injury.234 However, such laws are not to apply to any break or injury caused bypersons who acted to save lives or their ships, after having taken all necessary precautionsto avoid such an occurrence.235 Article 113 essentially allows for the extension of a state’scriminal jurisdiction, usually limited to territory, to include acts of breaking or injury tosubmarine cables done “willfully or through culpable negligence” on ships flying its flagon the high seas or EEZ or to their nationals who commit such acts, consistent with generalprinciples of international law on the prescription of extraterritorial jurisdiction.236

Article 114, which is based on Article IV of the 1884 Convention, requires every stateto adopt laws and regulations concerning the liability of owners of cables for the cost ofrepairs to existing cables that are damaged in the course of laying or repair operations.237

The laws and regulations apply only to persons subject to that state’s jurisdiction; that is,owners who are nationals of the state.

Article 115, which is based on Article VII of the 1884 Convention,238 provides thatevery state should adopt laws and regulations to provide for an indemnity to be paid bycable owners to shipowners whose master sacrifices an anchor, a net, or any other fishinggear in order to avoid injuring a submarine cable, provided that the shipowner has taken allreasonable precautionary measures beforehand.239 Such laws and regulations apply only tonationals and ships flying their flag.240 While the precautionary measures to be taken are

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not specified, it will include the measures taken by vessels to avoid submarine cables in thefirst place.241

The major problem in the protection of submarine cables outside of territorial watersis that many states have not adopted legislation implementing their obligations, particularlythe obligation in Article 113 of UNCLOS of extending criminal jurisdiction over actscommitted on the high seas or EEZ.242 States that do have such national legislation areusually parties to the 1884 Convention.243 In most cases, this legislation has not beenupdated and the penalties are so low that they provide neither an incentive for authoritiesto prosecute nor for vessels to take minimum precautions to avoid damage to submarinecables.244

As noted, both Australia’s and New Zealand’s legislation on cable protection zonesallow the relevant authorities to establish cable protection zones in areas outside of territorialwaters.245 However, the legal basis in UNCLOS for establishing such zones is questionable.Interestingly, establishing protective zones around submarine cables was mooted by the ILCin 1956, but was rejected as inconsistent with the freedom of navigation.246 That said, ithas been observed that:

A protection zone for a submarine cable outside the territorial sea could bevalidly asserted by a state, provided the basis of jurisdiction was tied to onethat could be claimed under the regime for the EEZ or continental shelf. Thatis to say, protection over a cable could be achieved by restricting activities thatcould be validly regulated in the EEZ or continental shelf.247

To the extent that cable protection zones prohibit or restrict activities such as fishing,resource exploration, and marine scientific research, they are arguably consistent with acoastal state’s rights in its EEZ and continental shelf.248 However, the situation is moreunclear when it comes to prohibiting or restricting anchoring of vessels in cable protectionzones.249 Anchoring is part of the freedom of navigation allowed to other states in the EEZand is not covered under the competences given to coastal states in its EEZ. Arguably, anydesignation of a no-anchorage area in cable protection zones would have to be done underthe auspices of the IMO.250 Nonetheless, cable protection zones in the EEZ and continentalshelf remain useful tools for the protection of particularly critical cables and states maywish to consider adopting such zones.

The High Seas and Deep Seabed. The obligations on states parties in Articles 113, 114,and 115 of UNCLOS discussed above also apply in the high seas. As already noted, manystates have not fulfilled their obligations to protect cables set out in these articles. Needlessto say, cable protection zones in areas of high seas, where no state can subject any part ofthe high seas to its sovereignty, would not be consistent with UNCLOS.

Protection of Submarine Cables from Intentional Acts of Damage

The section above discussed damage from competing uses (i.e., fishing, shipping, andresource exploration activities), which is usually a result of negligence. However, anunderappreciated issue is the fact that cables are a potential target for intentional dam-age by terrorists251 and others seeking to destroy communications infrastructure. The theftof submarine cables has also been a problem; for example, the theft of 100 kilometers ofsubmarine cables off the seabed by Vietnamese fishermen resulted in severe disruptions tothe Internet in Vietnam.252

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While Article 113 could in principle cover both terrorist acts (on the basis that Article113 deals with the breaking or injury of a submarine cable done “willfully”) and theft ofsubmarine cables (on the basis that the theft of submarine cables would involve willful“breaking or injury” of a submarine cable), Article 113 has other limitations that make itinadequate to deal with these threats.

First, as mentioned above, many states have not implemented their obligations underArticle 113. This means that intentional damage to submarine cables located in the EEZor high seas is not a criminal offense in many states.253 Second, even when states haveimplemented Article 113, it arguably is not sufficient to be used against intentional acts ofdamage to submarine cables, particularly terrorist acts. National legislation implementingArticle 113 usually imposes penalties such as monetary fines, which is more appropriatefor negligent damage to submarine cables than damage caused by terrorist acts. Further,Article 113 is also limited in that a state can exercise criminal jurisdiction over intentionaldamage to cables only if the perpetrators are nationals of that state or were on board a vesselflying the flag of that state. If a terrorist act were carried out by a foreign-flagged vessel orby foreign perpetrators against cables on the continental shelf of a coastal state, that coastalstate would not have the jurisdiction to prosecute the damage to submarine cables sinceArticle 113 is limited to nationals and flag state vessels.254 Similarly a state, which hassuffered a telecommunications disruption because a cable serving its telecommunicationsnetwork has been intentionally destroyed by terrorists in an area outside its territorialsovereignty, would have no recourse under Article 113 unless the perpetrators or offendingvessel were from that state.255

Lastly, Article 113 addresses only legislative jurisdiction over perpetrators of such actsand not enforcement jurisdiction. Article X of the 1884 Convention allows warships torequire the master of a vessel suspected of having broken a cable to provide documentationto show the ship’s nationality and, thereafter, to make a report to the flag state. But asdiscussed above, Article X is not binding on nonparties and there is little evidence ofstates parties exercising their rights under this provision.256 The right to board anothervessel in areas outside of territorial sovereignty is limited to certain circumstances underUNCLOS257 and, generally, states have opposed a right to board without the consent of theflag state in other contexts even for the suppression of serious crimes.258

Similarly, the right to arrest vessels in the EEZ or high seas in areas outside of territorialsovereignty is limited. There is an argument that the theft of submarine cables could beconsidered piracy under UNCLOS, in which case vessels of any flag have the right of arrestin the EEZ or high seas.259 Article 101 of UNCLOS provides:

Piracy consists of . . . any illegal acts of violence or detention, or any act ofdepredation, committed for private ends by the crew or the passengers of aprivate ship or a private aircraft, and directed . . . on the high seas, againstanother ship or aircraft, or against persons or property on board such ship oraircraft . . . against a ship, aircraft, persons or property in a place outside thejurisdiction of any State.

In principle, theft of a submarine cable beneath the high seas or in the EEZ could beconsidered an “act of depredation, committed for private ends . . . by the crew . . . of aprivate ship . . . and directed . . . against property in a place outside the jurisdiction of anyState.”260 However, it is unlikely that states will apply the UNCLOS provisions on piracyto the theft of submarine cables given their general reluctance to exercise this power evenin relation to acts of piracy.261

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Since a terrorist attack on submarine cables could have wide-ranging ramificationson international telecommunications, there is a compelling argument that protection ofsubmarine cables should be dealt with in the same manner as other terrorist acts againstcritical infrastructure such as vessels and airplanes; namely, by adopting an internationalconvention based on the UN counterterrorism conventions.262 The United Nations hasadopted 14 counterterrorism conventions that oblige state parties to make specific actscriminal offenses under their national law, and to establish jurisdiction over the offenseon the basis of some jurisdictional nexus to the offense (nationality, flag state, territory,etc.) or by the presence of the offender in their territory (which has been described asquasi-universal jurisdiction).263 If the perpetrator is present in the territory of a state party,the state is required to take the perpetrator into custody and either extradite the person toanother state party with jurisdiction or prosecute the person.264 While the merits of such acourse of action are undeniable, issues remain as to whether states have the political willor sufficient interest to adopt a convention on damage to submarine cables by terrorists265

and what is the best mechanism to make such acts an international crime.With regard to enforcement jurisdiction over acts of theft or terrorist damage to subma-

rine cables, states are unlikely to extend rights to board and rights to arrest vessels engagingin damage to submarine cables. The solution may be for states to cooperate regionally inthe protection of submarine cables outside of territorial sovereignty by joint or coordinatedpatrols in areas where submarine cables have been laid so as to prevent attacks.266

Dispute Settlement Under UNCLOS and Submarine Cables

Disputes concerning the interpretation or application of UNCLOS with regard to the exer-cise by a coastal state of its sovereign rights and jurisdiction are subject to compulsory pro-cedures entailing binding decisions set out in Part XV, Section 2 (Section 2 Procedures).267

Disputes on whether a coastal state has acted in contravention of the provisions of UN-CLOS with regard to the laying of submarine cables or other internationally lawful usesof the sea would be subject to Section 2 Procedures.268 Similarly, disputes on whether astate has acted in contravention of the laws and regulations adopted by the coastal state inconformity with UNCLOS are also subject to Section 2 Procedures.269 A state party couldbring a claim against another state party which, for example, imposed excessive regulationson the laying or repair of cables in its EEZ or breached coastal state laws and regulationson the laying or repair of cables.

The question concerns who might refer disputes relating to submarine cables to disputesettlement under Section 2. Cable companies, which have every interest in bringing sucha claim and which are in fact exercising the rights of states, are precluded from usingUNCLOS dispute settlement mechanisms because they are only open to states. Cable systemowners are usually telecommunications carriers or a consortium of telecommunicationscarriers, which are either fully or partially privatized. Such owners would need to persuadethe states in which they are incorporated to bring a claim under UNCLOS. Another obstacle,is the fact that cables are usually owned by a consortium of companies incorporated indifferent states and determining the appropriate state that owns the cable may be challenging.

Cable installers that lay, repair, and maintain cables either own the cable ships con-ducting such cable operations or charter such ships. The flag state of the cable-laying orrepair vessel could challenge, for example, coastal state regulations requiring permits forthe laying or repair outside of territorial sovereignty.270 However, this is premised on cableinstallers registering or chartering ships with flag states that have the political will andinterest to challenge excessive regulations on their behalf.271

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An interesting question is whether a state party to UNCLOS, whose communicationshave been seriously impaired, for example, by excessive permit requirements delayingthe repair of a cable but other than that has no connection either to the cable ship re-pairing the cable or the cable itself, can avail itself of the dispute settlement proceduresin UNCLOS. Arguably, such a state could bring a case against a coastal state relatingto the interpretation of Article 79(2) and the extent to which a coastal state can sub-ject the laying and repair of cables to reasonable resource exploration and exploitationmeasures.

At present, it appears unlikely that any disputes relating to the laying and repair ofsubmarine cables or the protection of cables will be brought to dispute settlement by anystate. Cable companies have been driving the growth of the industry and government interestappears to be confined to telecommunications standards. Moreover, cable companies (andtheir associated states) are naturally reluctant to enforce their rights in an adversarialsetting since they are largely dependent on the goodwill of coastal states for the exerciseof their rights. Generally, negotiations and awareness-raising are the approaches preferred.However, cable companies should not exclude the possibility of persuading either the flagstate of cable-laying or repair vessels or the state of incorporation of the cable systemowner(s) to use Section 2 dispute settlement procedures in UNCLOS to definitively clarifytheir rights.

Lack of Mechanisms for Consultation and Cooperation BetweenStates and Cable Companies

The issues discussed above relating to the regulation of cable operations and the protectionof submarine cables and cable ships are a symptom of a wider problem; that is, the lack ofa mechanism for consultation and cooperation between states and the cable industry. Thereare several reasons for this.

First, states do not appear to have anticipated or appreciated the critical nature ofsubmarine cables to their international communications.272 Accordingly, they have notchanged or adapted domestic laws and administration to respond to the fact that subma-rine cables are critical communications infrastructure.273 As noted above, there often is nonational lead agency dealing with submarine cables. National telecommunications agen-cies frequently address only telecommunications standardization, licensing (for landingstations), and competition issues and may not be familiar with maritime issues. Maritimeagencies are usually responsible for operations in coastal waters and may not appreciate thecritical nature of submarine cables. As a result, “there is often no clear policy on subma-rine cables, no lead agency responsible for permitting issues and no legislation to protectcables.”274

Another problem is that there is no international governmental agency responsiblefor submarine cables. While the IMO would theoretically be involved in the shipping-related aspects of submarine cables, it may not be suitable as an overall internationalagency responsible for submarine cables. Although the International TelecommunicationsUnion (ITU) is purportedly the leading UN agency for information and communicationtechnology,275 it is primarily concerned with standardization in the industry and has minimalawareness of law of the sea issues. The ICPC has until recently been a nongovernmentalorganization consisting of cable companies, although it has recently invited states to join.276

Accordingly, international issues with respect to submarine cables have arguably fallenthrough the cracks.

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Recent Developments

Developments have occurred that give reason to be optimistic on the challenges facingsubmarine cables. Through the coordinated efforts of research institutions,277 cable com-panies, the ICPC, and governments such as those of Australia and Singapore to increaseawareness of submarine cables, states and the international community are recognizingtheir critical nature. In 2009, the Telecommunications and Information Working Group ofthe Asia-Pacific Economic Cooperation (APECTEL), consisting of member economies ofAPEC, held a Submarine Cable Protection Information Sharing Workshop at the suggestionof Australia. It was agreed, inter alia, that an inventory of legislative instruments and regu-latory requirements in relation to submarine cables should be developed in each economyand that awareness should be raised at the ministerial level about the importance of sub-marine cables and the impact and costs of cable outages on the member economies.278 TheStrategic Action Plan, endorsed by the Eighth Ministerial Meeting in 2010, recognized theimportance of “consolidating and disseminating information that will reduce the incidenceof disruption and expedite submarine cable repairs.”279

Equally as important is the UN General Assembly’s annual omnibus Resolution onOceans and Law of the Sea adopted on 7 December 2010280 which, at the initiative ofSingapore,281 recognized submarine cables as “critical communications infrastructure” forthe first time. The operative paragraph of the resolution states:

Also calls upon States to take measures to protect fibre optic submarine cablesand to fully address issues relating to these cables, in accordance with inter-national law, as reflected in the Convention; encourages greater dialogue andcooperation among States and the relevant regional and global organizations topromote the security of such critical communications infrastructure. . . . 282

It is hoped that such initiatives will continue to raise awareness about submarine cablesand, consequently, enhance avenues for consultation and cooperation between the cableindustry and states. It is only through such consultation and cooperation that the problemsdescribed above.

Conclusion

The problems related to submarine cables discussed in this article are illustrative of theproblems that the law of the sea has historically faced–how to accommodate and balancethe rights and interests of coastal states and other states in the use of ocean space.

Cable operations, for example, have been subject to increasing coastal state regulationboth in areas under sovereignty and areas outside of sovereignty to the detriment of interna-tional communications and the international community in general. This can be seen as partof a wider trend of expanding coastal state jurisdiction over maritime activities, even onesthat have traditionally been perceived as “freedoms of the sea” such as cable operations.

With regard to the protection of submarine cables, however, the contrary is happening—there is not enough regulation. States have not enacted the measures necessary to protectcable ships from interference from competing activities or submarine cables from damagefrom competing uses and intentional damage. The absence of national measures on theprotection of cables and cable ships is mainly due to a lack of appreciation by states ofthe importance of cables. Arguably, it can also be attributed to the inclination of states to

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be concerned only with activities or interests that directly benefit them (e.g., fishing andresource exploration or exploitation activities) or affect them (e.g., the marine environment).

In the traditional “coastal state versus other states” dichotomy, the responsibility forthe problems affecting submarine cables cannot all be placed on coastal states. Other statesthat are afforded rights under UNCLOS and cable companies, that are in effect exercisingsuch rights, have not played an adequate role in ensuring that the rights and obligationsrelating to cables are effectively asserted and protected. States that have been afforded rightsrelated to cables under UNCLOS have not stepped up to assert their rights vis-a-vis coastalstates through unofficial or official diplomatic channels or considered using the disputesettlement mechanisms under UNCLOS. Cable companies, while arguably hampered indirectly asserting or advocating their rights vis-a-vis coastal states by a lack of nationaland international fora, can play a more significant role in enhancing awareness of cablesthrough mechanisms like workshops and publications. Cable companies are increasinglytaking the initiative in this respect, and the ICPC continues to play a critical role in leadingand coordinating these efforts. Further, cable companies can demonstrate to both coastalstates and other states that cable operations and the protection of cables can be done in away that can accommodate the legitimate rights and interests of such states.

When balancing the various competing interests and rights, coastal states, other states,and cable companies should also remember that “absolute” interpretations of their respectiverights under UNCLOS are self-defeating. The assertion of a “doctrinaire, absolutisticconception of freedom of the seas,”283 including the freedoms associated with submarinecables, without taking into consideration the rights of the coastal state is unhelpful and maylead to even more extreme claims and actions by coastal states.284 Similarly, coastal statesthat make expansive claims to ocean spaces put pressure on the rules designed to protecttheir interests and fail to realize that their “own long-term interests will not be served if otherStates make similar extravagant claims.”285 Coastal states, other states, and cable companiesneed to realize that the common interest lies in minimizing conflicts between submarinecables and competing uses and, ultimately, protecting international communications.

The first step toward balancing such competing interests is to enhance consultation andcooperation between states and cable companies. Efforts should focus on how to create bothinformal and formal mechanisms for such consultation and cooperation. These can includesponsoring workshops, meetings, and seminars related to submarine cables on a national orregional level; ensuring that lead agencies are designated within states to coordinate policyon cables; and encouraging the formation of regional cable committees (consisting of cablecompanies) that can deal with states on relevant issues with a united front.286 Such initiativeswill foster an environment of mutual confidence and trust that will in turn allow greatercooperation between cable companies and states and, ultimately, enable the law of the seato fulfill its function of balancing and accommodating competing rights and interests.

Notes

1. United Nations Convention on the Law of the Sea, 10 December 1982, 1833 U.N.T.S. 397(entered into force 16 November 1994).

2. Bernard H. Oxman, “The Rule of Law and the United Nations Convention on the Law ofthe Sea,” European Journal of International Law 7 (1981): 365.

3. See Lionel Carter, Douglas Burnett, Stephen Drew, Graham Marle, Lonnie Hagadorn,Deborah Bartlett-McNeil, and Nigel Irvine, “Submarine Cables and the Oceans: Connecting theWorld,” UNEP-WCMC Biodiversity Series No. 31 (ICPC/UNEP/UNEP-WCMC, United Kingdom,2009), 8, avilable at www.iscpc.org/publications/ICPC-UNEP Report.pdf.

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4. Ibid.5. For a discussion on the traditional conflicts between “inclusive uses” and “exclusive uses”

see, generally, Myres S. McDougal and William T. Burke, The Public Order of the Oceans: AContemporary International Law of the Sea (New Haven: Yale University Press, 1962), 1–14.

6. The first submarine telegraph cable was reportedly laid in 1850 in the Channel betweenUnited Kingdom and France. See UNEP/ICPC Report, supra note 3, at 3.

7. Ibid., at 15–16.8. Ibid.9. Ibid.

10. Ibid., at 8.11. Satellites remain necessary for remote areas not serviced by submarine cables, for disaster-

prone regions, and for providing alternative coverage during repairs of submarine cables. Ibid., at16.

12. Ibid., at 19.13. Ibid., at 16.14. The U.S. Navy uses underwater cables for a wide variety of systems that in-

clude subsea communication and power transmission, and also for “precise placement and ori-entation of acoustic sensors suspended high above the seafloor.” See Bob Fredrickson andCatherine Creese, “Navy Undersea Cable Systems,” Submarine Telecoms Forum 35 (November2007): 39, Submarine Telecoms Forum, available at www.subtelforum.com/issues/Issue%2035.pdf.Such military cables are “vital to national defense and homeland security.” See Douglas Bur-nett, “The Importance of UNCLOS to the Cable Industry,” Submarine Telecoms Forum 26(May 2006): 23, Submarine Telecoms Forum, available at www.subtelforum.com/issues/Issue%2026.pdf.

15. For example, the NEPTUNE Scientific Submarine Cable System is a joint U.S.-Canadianeffort to wire the Juan de Fuca tectonic plate located off northwestern North America with 3,300kilometers of dedicated scientific fiber-optic cable for the study of the ocean floor. See A. D. Chave,H. Kirkham, A. R. Maffei, G. Massion, H. Frazier, A. M. Bradley, S. J. Gaudet, W. Wilcock, D. H.Rodgers, P. M. Beauchamp, J. C. Madden, and B. M. Howe, “The NEPTUNE Scientific SubmarineCable System,” National Science Foundation’s Ocean Observatories Initiative, available at www.ooi.washington.edu/files/ac suboptic.paper.pdf.

16. For example, the Ocean Fiber System in the United States was reportedly to be used toenable energy companies to monitor oil platforms from remote control centers on shore, to providealternative telecommunications to the public, and for military purposes. See Burnett, supra note 14,at 23.

17. U.N. General Assembly Resolution No. A/Res/65/37, Oceans and Law of the Sea, adoptedat the 59th Plenary Meeting of the General Assembly, 7 December 2010, U.N. Division for OceanAffairs and the Law of the Sea (DOALOS), available at www.un.org/depts/los/index.htm.

18. For example, British Telecommunications (BT) and Singapore Telecommunications(SingTel).

19. For example, the Southern Cross Cable, which is located in Australian waters, providesinternational bandwidth to Australia, New Zealand, Hawaii, and the continental United States. Itcost $1.5 billion dollars to build and is jointly owned by Telecom New Zealand, SingTel Op-tus, and Verizon Business. See Southern Cross Cables, available at www.southerncrosscables.com/public/home/default.cfm.

20. Tyco Telecommunications is an example of a cable supplier and installer.21. Convention for the Protection of Submarine Telegraph Cables, 14 March 1884, 163 Con-

solidated Treaty Series (C. Parry, ed.): 241 (entered into force 1 May 1888). Submarine telegraphcables were the predecessor to submarine fiber-optic telecommunications cables.

22. Convention on the High Seas, 29 April 1958, 450 U.N.T.S. 11 (entered into force 30September 1962).

23. Convention on the Continental Shelf, 29 April 1958, 499 U.N.T.S. 311 (entered into force10 June 1964).

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24. Yoshinobu Takei, “Law and Policy for International Submarine Cables in the Asia-PacificRegion,” paper presented at the 2nd National University of Singapore-Asian Society of InternationalLaw Young Scholars Workshop, Singapore, 30 September–1 October 2010), Asian Society of Inter-national Law, available at www.asiansil.org/index.php?option=com publications&Itemid=62. Takeipointed out that, apart from the Convention for the Protection of Submarine Telegraph Cables (note21), the Convention on the High Seas (note 22) and the Convention on the Continental Shelf (note23), the 1996 Protocol to the 1972 Convention on the Prevention of Marine Pollution by the Dumpingof Wastes and Other Matter (7 November 1996), 36 I.L.M. 1, also governs submarine cables in thatArticle 1, paragraph 4.2.3, states that “dumping” does not include the abandonment in the sea ofmatter such as cables placed for a purpose other than the mere disposal thereof.

25. Convention on the International Regulations for Preventing Collisions at Sea, 20 October1972, 1050 U.N.T.S. 18 (entered into force 15 July 1977).

26. See Louis Renault, “The Protection of Submarine Telegraphs and the Paris Confer-ence (October–November 1882),” in International Law Review, eds. Merzbach and Falk (Brussels:Murquardt, 1884), 4, available at the ICPC Members Database (restricted access).

27. See Ministry of Foreign and European Affairs of France, available at www.doc.diplomatie.gouv.fr/BASIS/pacte/webext/multidep/sdw?W=+ORDER+BY+DATOP/Ascend. France is the de-pository for the 1884 Convention.

28. “Articles Concerning the Law of the Sea with Commentaries,” in Yearbook of the Inter-national Law Commission, Vol. II, Doc. A/3159 (1956). The International Law Commission (ILC),which was entrusted by the United Nations with the codification of the law of the sea, produceda series of draft articles on the territorial seas, high seas, and continental shelf. The 1956 versionwas the main document considered at the 1958 Geneva Conference (UNCLOS I). The 1958 GenevaConference resulted in the adoption of four conventions, the most important ones, for this article,being the 1958 Convention on the High Seas, supra note 22, and the 1958 Convention on the Con-tinental Shelf, supra note 23. The 1960 Law of the Sea Conference (UNCLOS II) did not produceany conventions and this resulted in the last conference on the law of the sea to be convened from1973 to 1982 (UNCLOS III), which ultimately led to the adoption of the 1982 LOS Convention. The1956 ILC Draft Articles on the Law of the Sea accordingly formed the basis of the 1958 High SeasConvention, the 1958 Continental Shelf Convention, and ultimately UNCLOS. See “Law of the Seas:High Seas Regime,” ILC, available at untreaty.un.org/ilc/summaries/8 1.htm.

29. Yearbook of the International Law Commission, Vol. I, Doc. A/CN.4/Ser.A/1951 (1951),at 363.

30. Articles II, IV, and V of the 1884 Convention, supra note 21, were incorporated in Articles27, 28, and 29 of the 1958 High Seas Convention, supra note 22.

31. There were initial misgivings that the provisions on the protection of submarine cablesproposed for adoption were too detailed and that the ILC should state only general principles. However,the ILC ultimately adopted three provisions from the 1884 Convention based on the rationale that thearticles chosen contained essential principles. Yearbook of the International Law Commission, Vol.I, Doc. A/CN.4/Ser.A/1955 (1955), at 20–21. However, during the discussions at UNCLOS I priorto the adoption of the 1958 Geneva Conventions, the United States proposed that the three articlesadopted from the 1884 Convention be deleted as:

[the articles] referred only to some of the detailed provisions of the 1884 Convention,rather than the underlying basic principles and that the adoption of these without ref-erence to the remaining articles of that Convention might well raise doubts as to thecontinued validity of the Convention, which in its entirety represents the whole of theexisting international law on the protection of submarine cables.

The United States eventually withdrew its objections on the assurance that their adoption would notprejudice the effectiveness of the 1884 Convention, a principle that was reflected in Article 30 of the1958 Convention on the High Seas, supra note 22, and in Article 311(2) of UNCLOS, supra note 1.See McDougal and Burke, supra note 5, at 846–847.

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32. The provisions on the freedom to lay submarine cables are Articles 2 and 26 of the 1958High Seas Convention, supra note 22, and Article 4 of the Continental Shelf Convention, supranote 24. Article 4 in the Continental Shelf Convention is identical to Article 26(2) in the High SeasConvention.

33. Indeed, the 1884 Convention deals solely with the protection of submarine cables and didnot address the freedom to lay cables because, at the time, “it was evident that freedom of use wasconceded by all and that the real concern was to adopt measures for protecting cables from other,sometimes physically incompatible, uses of the ocean.” See McDougal and Burke, supra note 5, at781.

34. In 1950, the ILC first recognized the principle that all states were entitled to lay submarinecables on the high seas. See “Report of the International Law Commission on its Second Session,”Official Records of the General Assembly, Fifth Session, Supplement No. 12 (A/1316), Doc. NoA/CN.4/34 (1950), at 384. When it was first discussed in the ILC at its second session, it waseven commented that, since the right to lay submarine cables had never been questioned, therewas no need to explicitly mention it in any convention on the topic. However, the Commissionagreed that, while the principle of freedom to lay submarine cables had never been challenged, itwas important to include it in any convention on the issue. See Comments of Judge Hudson and Mr.Spiropolous, Yearbook of the International Law Commission, Vol. I, Doc. A/CN.4/Ser.A/1950 (1950),at 199.

35. “Status of UNCLOS,” available at the U.N. Treaty collection Web site, treaties.un.org/pages/ViewDetailsIII.aspx?&src=TREATY&mtdsg no=XXI!6&chapter=21&Temp=mtdsg-3&lang=en#1.

36. UNCLOS, art. 311(1), supra note 1.37. Most of the UNCLOS provisions on submarine cables are based on the provisions found

in the 1958 High Seas Convention, supra note 22, which were purported to codify existing customaryinternational law. See R. R. Churchill and A. V Lowe, The Law of the Sea, 3rd ed. (Manchester:Manchester University Press, 1999), 203. With regard to the provisions in UNCLOS not based on the1958 High Seas Convention, UNCLOS in general is almost universally accepted and the majority ofits provisions are considered to be evidence of customary international law. See Churchill and Lowe,at 23.

38. See Eric Wagner, “Submarine Cables and Protections Provided by the Law of the Sea,”Marine Policy 19 (1995): 134; and Robert Beckman, “Submarine Cables—A Critically Important butNeglected Area of the Law of the Sea,” paper presented at the 7th International Conference of the Inter-national Society of International Law on Legal Regimes of Sea, Air, Space and Antarctica, New Delhi,15–17 January 2010, at 16, Centre for International Law (CIL), National University of Singapore,available at cil.nus.edu.sg/wp/wp-content/uploads/2010/01/Beckman-PDF-ISIL-Submarine-Cables-rev-8-Jan-10.pdf.

39. See American Law Institute, Restatement (Third) of Foreign Relations Law of the UnitedStates, Vol. 1 (1987), sec. 521, comment f.

40. One of the requirements for a rule of treaty law to become customary international lawis that there must be widespread and representative participation in the convention including stateswhose interests are specifically affected. See, generally, the discussion in the North Sea ContinentalShelf Cases, [1969] I.C.J. Rep. 18. See also Martin Dixon, Textbook on International Law, 6th ed.(New York: Oxford University Press, 2007), 31–37.

41. Douglas Burnett, “The 1884 International Convention for Protection of Submarine Ca-bles Provisions Not in UNCLOS Deserve Attention Now,” paper presented at the CIL Work-shop on the Protection of Submarine Cables, Singapore, 14–15 April 2011, CIL, availableat cil.nus.edu.sg/wp/wp-content/uploads/2011/04/Douglas-Burnett 1884 International Conventionfor Protection of Submarine Cables Provisions Not in UNCLOS De1.pdf.

42. Takei, supra note 25, at 3. Takei pointed out that only Article 113 of UNCLOS, supra note1, distinguishes between “submarine cables” and “high-voltage power cables.”

43. See TE SubCom Web site on Route Planning, available at www.tycotelecom.com/process/design/route-planning.aspx.

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44. UNEP/ICPC Report, supra note 3, at 21.45. Ibid.46. Graham Evans, “Overview of Submarine Cable Route Planning and Cable Route Survey

Activities,” presentation at the CIL Workshop on Submarine Cables and Law of the Sea, Singapore,14–15 December 2009, CIL, available at cil.nus.edu.sg/wp/wp-content/uploads/2009/10/CIL-Survey-Background-Presentation-Graham-Evans.pdf.

47. See UNEP/ICPC Report, supra note 3, at 21.48. See “Cable Ships,” Global Security.org, available at www.globalsecurity.org/military/

systems/ship/offshore-cableship.htm.49. UNEP/ICPC Report, supra note 3, at 23.50. See “An Overview of the Use of Submarine Cable Technology by UK PLC,” Centre for

the Protection of National Infrastructure, available at www.cpni.gov.uk/Docs/Submarine-cables.pdf.51. UNEP/ICPC Report, supra note 3, at 20.52. Ibid., at 24.53. Ibid.54. For example, the 2006 Hengchun earthquake caused breaks in nine submarine cables

in the Strait of Luzon between China and the Philippines. Internet links in China, Hong Kong,Singapore, Taiwan, Japan, and the Philippines were seriously impaired. It took 11 ships to re-store everything back to normal. See “ICPC Press Release of 21 March 2007,” ICPC, available atwww.iscpc.org/information/ICPC Press Release Hengchun Earthquake.pdf>. Similarly, when thecable known as SEA-ME-WE 4 was damaged in Egyptian waters in 2008 by a vessel dragging itsanchor along the seabed, Internet connections in India, Egypt, Dubai, the United Arab Emirates,Kuwait, and Saudi Arabia were affected. See “Work Begins to Repair Severed Net,” BBC News, 5February 2008, available at news.bbc.co.uk/2/hi/technology/7228315.stm.

55. Douglas Burnett, “Recovery of Cable Repair Ship Cost Damages from Third Parties thatInjure Submarine Cables,” Tulane Maritime Law Journal 35 (2010): 108.

56. UNCLOS, art. 3, supra note 1.57. Ibid., art. 258. Ibid., art. 2(3).59. Ibid., art. 17. Under Article 19(1) of UNCLOS, innocent passage is passage that is not

“prejudicial to the peace, good order or security of the coastal State.” Article 19(2) sets out a list ofactivities that render passage noninnocent. While the right of innocent passage within the territorialsea had existed in customary international law, UNCLOS provided for “a more objective definitionof innocent passage and a more detailed elaboration of the extent of coastal State rights to regulateinnocent passage” designed to protect and strengthen the regime for international communications.See Oxman, supra note 2, at 366, fn. 21.

60. These are laws and regulations on: (1) the safety of navigation and regulation of maritimetraffic; (2) the protection of navigational aids and facilities; (3) the protection of cables and pipelines;(4) the conservation of living resources of the sea; (5) the prevention of infringement of fisherieslaws and regulations; (6) the preservation of the environment; (7) marine scientific research andhydrographic surveys; and (8) the prevention of infringement of the customs, fiscal, immigration, orsanitary laws and regulations of the coastal state. This list is generally considered to be exhaustive;that is, a coastal state cannot impose other laws and regulations on innocent passage. See Churchilland Lowe, supra note 37, at 95.

61. As defined in UNCLOS, art. 46, supra note 1.62. Ibid., art. 49.63. Ibid., art. 52.64. Ibid., art. 51(2). This provision was introduced to take into account the concerns of states

that the concept of an archipelagic state would unduly hinder access to existing submarine cablesin waters previously not under the sovereignty of states. See Myron Nordquist, Satya Nandan, andShabtai Rosenne, eds., The United Nations Convention on the Law of the Sea 1982: A Commentary,Vol. II (Leiden: Martinus Nijhoff, 1993), at 449. The provision applies to only existing cables, withthe laying of new cables being dependent on the consent of the archipelagic state. See Churchill andLowe, supra note 37, at 126.

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65. Ibid., art. 19(2)(j).66. Ibid., art. 21(1)(g).67. Ibid., arts. 40 and 54.68. A hydrographic survey has been defined as “a survey having for its principal pur-

pose the determination of data relating to bodies of water. A hydrographic survey may con-sist of: the determination of one or several of the following classes of data: depth of water,configuration and nature of bottom; directions and force of currents; heights and times of tides andwater stages: and location of topographic features and fixed objects for survey and navigation pur-poses.” See definition of “hydrographic survey,” International Hydrographic Organization, available atwww.iho-wms.net:8080/hydrodic/en/index.php/hydrographic survey. See also infra notes 117–118.

69. UNCLOS, Article 19(2)(j), supra note 1, refers to survey activities; Article 21(1)(g) refersto hydrographic surveys; and Article 40 states that hydrographic survey ships may not carry outsurvey activities without the prior authorization of the states bordering the straits. See also infra note119.

70. Coastal states may impose different permitting requirements for cables which land in theirterritory and cables which transit their territorial waters and do not land in their territory. Theoretically,the latter would not need a license from the national telecommunications regulation to land in thatstate.

71. See Andrew D. Lipman and Nguyen T. Vu, “Building a Submarine Cable: Navigating theRegulatory Waters of Licensing and Permitting,” Submarine Telecoms Forum, Finance and LegalEdition (March 2011), available at www.bingham.com/Media.aspx?MediaId=12289.

72. Ibid.73. In Singapore, for example, it is necessary to make an application with the Maritime Port

Authority of Singapore for the designation of a cable corridor within territorial waters.74. For example, in the United States, it is necessary to obtain federal, state, and local permits

and the process can take up to 12 months. See Lipman and Vu, supra note 71.75. In India, a permit for the repair of cables within territorial seas reportedly requires approvals

or licenses from seven separate agencies and can take up to a month. See Mick Green, StephenDrew, Lionel Carter, and Douglas Burnett, “Submarine Cable Network Security,” presentation atthe Submarine Cable Protection Information Sharing Workshop, Singapore, 13 April 2009, ICPC,available www.iscpc.org / information / Openly % 20Published % 20Members % 20Area % 20Items /Submarine Cable Network Security.ppt.

76. Robert Beckman and Tara Davenport, “CIL Workshop Report,” prepared for the Workshopon Submarine Cables and Law of the Sea, 14–15 December 2009, Singapore, 16, CIL, available atcil.nus.edu.sg/wp/wp-content/uploads/2009/10/Workshop-Report-29-Jan-2010.pdf.China (State Oceanic Administration), Australia (Australian Communications and MediaAuthority), and Singapore (InfoComm Development Authority) all have designated lead agencies tocoordinate permitting procedures with other agencies.

77. Hong Kong, Legislative Council Panel on Information Technology and Broadcasting,“Landing of Submarine Cables in Hong Kong,” 8 March 2010, LC Paper No. CB (1) 1289/09-10(04), which also observed “there was a need to increase the transparency of the application process.”In the course of researching this article, it was difficult to find online for many countries the pro-cedures for applying to lay and repair cables. Singapore and Australia were among the few excep-tions where detailed information on procedures can be found. See “Guidelines for the Deploymentof Submarine Cables into Singapore,” Singapore Info-commercial Development Authority (IDA),available at www.ida.gov.sg/Policies%20and%20Regulation/20100827100559.aspx; and “Guide toApplying for a Protection Zone Permit,” ACMA, available at www.acma.gov.au/WEB/STANDARD..PC/pc=PC 100870.

78. See, for example, paragraph 4.3, “Guidelines for the Deployment of Submarine Cablesinto Singapore,” supra note 77; and Article 9, Measures of the State Oceanic Administration for theImplementation of the Administrative Provisions Governing the Laying of Submarine Cables andPipelines, Order No. 3 of the State Oceanic Administration on 26 August 1992, available at Law InfoChina Web site (for subscribers only).

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79. UNEP/ICPC Report, supra note 3, at 29.80. For example, it is said that California has some of the most onerous environmental permit-

ting requirements of any state in the United States and that obtaining an environmental impact reportcan take several years. See Lipman and Vu, supra note 71.

81. “Pollution to the marine environment” is defined under UNCLOS, Article 1, supra note 1,as the:

Introduction by man, directly or indirectly, of substances or energy into the marineenvironment, including estuaries, which results or is likely to result in such deleteriouseffects as harm to living resources and marine life, hazards to human health, hindranceto marine activities, including fishing and other legitimate uses of the sea, impairmentof quality for use of sea water and reduction of amenities.

82. These studies used a

combination of sediment samples and direct observations made with a remotely operatedvehicle . . . [the study] concluded that a telecommunications cable off Monterey Bay,California, had minimal to no impact on the fauna living in or on the surroundingseabed, with the exception that the cable locally provided a firm substance for someorganisms that otherwise would not have grown on the mainly soft seafloor sediments.

This was in contrast to previous studies that had documented a significant impact on marinelife, particularly the entanglement of whales in old telegraph cables. But with improved designof submarine cables, no further entanglements of marine mammals have been recorded. SeeUNEP/ICPC Report, supra note 3, at 9.

83. UNPE/ICPC Report, supra note 3, at 34, found that “disturbances and impacts caused bycable-laying and repairs must be viewed in the context of the frequency and extent of these activities”and “unless a cable fault develops, the seabed may not be disturbed again within the system’s designlife.” See also the discussion in UNEP/ICPC Report, at 34–37, on studies relating to the time it takesfor the seabed to recover.

84. See Kohe Hasan, “Indonesia Tells Owners to Shape Up or Ship Out,” Lloyds List, 28September 2011.

85. Ibid.86. Ririn Kusuma, “Enforcing the Cabotage Law Could Cost Country Billions,” Jakarta

Globe, 2 March 2011, available at www.thejakartaglobe.com/bisindonesia/enforcing-the-cabotage-law-could-cost-country-billions/426302.

87. Hasan, supra note 84, citing Article 206a of Regulation No. 22 of 2011 of Indonesia.88. Regulation of the Minister of Transportation No. 48 Year 2011 Regarding the Proce-

dures and Requirements to Grant on the Use of Foreign Vessels for Other Activities that Do NotInclude Activities of Transporting Passenger and/or Goods in the Domestic Sea Freight Activ-ities, Article 5, 18 April 2011, available at www.benlineagencies.com/userfiles/file/MINISTER%20OF%20TRANSPORTATION.pdf.

89. See generally, ibid., art. 10.90. See Kent Bressie and Madeleine Findley, “Indonesia’s 2008 Shipping Law: Unintended

Harms to Undersea Cable Installation and Maintenance,” Submarine Telecoms Forum 5 (May 2011):30, Submarine Telecoms Forum, available at www.subtelforum.com/issues/STF 57.pdf.

91. Ibid.92. Ibid.93. Ibid.94. Ibid.95. Article 4 of the ICPC Draft Convention for the Protection and Repair of Submarine Cables

states that: “[a] cable ship engaged in repair and maintenance of a submarine cable, even if stopped or

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anchored, enjoys the right of innocent passage.” The ICPC Draft Convention is a result of long-termefforts by the ICPC to address both the speedy repair of submarine cables and the protection ofsubmarine cables from damage. See “Commentary to the Convention for the Protection and Repairof Submarine Cables,” available at the ICPC Members Database (restricted access).

96. Oxman, supra note 2, at 366, fn. 21.97. See Beckman, supra note 38, at 3.98. UNCLOS, art. 18(2), supra note 1. Stopping and anchoring is allowed only to the extent

that it is necessary for ordinary navigation or incidents of force majeure.99. Ibid., art. 19(2)(l).

100. McDougal and Burke, supra note 5, at 289.101. In order to facilitate speedy repairs, cable owners have concluded cable maintenance

agreements where “cable owners pool together as a regional contractual consortium to charter oneor more cable ships to dedicate to the repair of cable systems owned by the parties to the agreement.The cable ships are strategically placed at ports in the region, maintained in a high state of readinessyear-round and contractually obligated to sail with a specially trained crew and spares for repairwithin twenty-four hours of cable fault notification.” See Burnett, supra note 55, at 106.

102. “CIL Workshop Report,” supra note 76, Recommendations 14–17. This has alsobeen recommended in the IDA “Guidelines on Submarine Cable Repair into Singapore.” Seewww.ida.gov.sg/Policies%20and%20Regulation/20100827100559.aspx.

103. See the discussion accompanying supra notes 32–34.104. UNCLOS, art. 56(1)(a), supra note 1.105. Ibid., art. 56(1)(b).106. Ibid., art. 77(1).107. Ibid., art. 76(1).108. The outer limit of the continental margin is to be determined in accordance with the

formula set out in ibid., Article 76(4).109. The outer limit of a coastal state’s extended continental shelf can be at 350 nautical miles

from the baseline from which the territorial sea is measured or 100 nautical miles from the 2,500-meterisobath. Ibid., art. 76(5).

110. Ibid., art. 56(1)(a).111. Ibid., arts. 77(1) and 77(4).112. Churchill and Lowe, supra note 37, at 166, commented that “[h]ad it not been for a strong

desire on the part of many coastal States, now reflected in the provisions of [UNCLOS], to includewithin the legal continental shelf those parts of the continental margin extending beyond 200 miles,the legal regime of the continental shelf could have been subsumed within the EEZ.”

113. UNCLOS, art. 87(1)(c), supra note 1. Nordquist et al., supra note 64, at 565, have observedthat the freedoms exercised in the EEZ by other states are the same as those incorporated from Article87, provided that they are compatible with the other provisions of the Convention. The difference isthat these freedoms are subject to measures related to the sovereign rights of the coastal state in theEEZ and they are not subject to such measures or those rights beyond that zone.

114. See Beckman, supra note 38, at 5.115. UNCLOS, Article 79(2), supra note 1, refers to the “laying or maintenance” of submarine

cables and Article 79 (5) refers to “repairing” existing cables. See Beckman, supra note 38, at 6.116. See Beckman, supra note 38, at 8; and UNEP/ICPC Report, supra note 3, at 26.117. Alfred Soons, Marine Scientific Research and the Law of the Sea (The Hague: Kluwer,

1982), at 125. Major maritime states like the United States consider surveys such as hydrographicsurveys and military surveys as part of the “other internationally lawful uses of the sea related to[high seas] freedoms, such as those associated with the operation of ships” given to other states in theEEZ and hence not subject to coastal state consent. See Raul Pete Pedrozo, “Preserving NavigationalRights and Freedoms: The Right to Conduct Military Activities in China’s Exclusive EconomicZone,” Chinese Journal of International Law 9 (2010): 23. The general view of the United States andother maritime powers is that the regime governing marine data collection depends on the means,methods, locations, and purposes for the collection of that information. See J. A. Roach, “Defining

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Scientific Research: Marine Data Collection,” in Freedom of the Seas, Passage Rights and the 1982Law of the Sea Convention, eds. M. H. Nordquist, T. T. B. Koh, and J. N. Moore (Leiden: MartinusNijhoff, 2007), at 541–542.

118. See Zhang Haiwen, “Is It Safeguarding the Freedom of Navigation or Maritime Hegemonyof the United States? Comments on Raul (Pete) Pedrozo’s Article on Military Activities in the EEZ,”Chinese Journal of International Law 9 (2010): 43. See also EEZ Group 21, “Guidelines for Navi-gation and Overflight in the Exclusive Economic Zone,” Ocean Policy Research Foundation, 2005,available at www.sof.or.jp/en/topics/05 02.php. The EEZ Group 21 Guidelines is a self-describedset of “non-binding voluntary principles which provide the basis for a common understanding andapproach to issues arising from the implementation of the EEZ regime, particularly in the Asia-PacificRegion.” Article IX provides that hydrographic surveying should be conducted in the EEZ of anotherstate only with the consent of the coastal state, with the exception of the collection of navigationaldata by a ship required for safe navigation.

119. For example, UNCLOS, Article 19(2)(j), supra note 1, refers to “research or surveyactivities; Article 21(1)(g) refers to “marine scientific research and hydrographic surveys;” andArticle 40 refers to “marine scientific research ships and hydrographic survey ships” and “researchor survey activities.”

120. See Soons, supra note 117, at 125.121. Myron Nordquist, Neil Grandy, S. N. Nandan, and Shabtai Rosenne, eds., United Nations

Convention on the Law of the Sea 1982: A Commentary, Vol. III (Leiden: Martinus Nijhoff, 1995),at 264.

122. UNCLOS, art. 79(5), supra note 1.123. On the continental shelf beyond the EEZ, the regime of the high seas applies to the water

column. In the high seas, all states have an obligation to exercise their high seas freedoms such as thelaying of submarine cables with due regard for the interests of other states exercising their high seafreedoms. See ibid., art. 87(2).

124. Ibid., art. 58(3).125. Ibid.126. The provision for prevention, reduction and control of pollution from pipelines did not

exist in the equivalent article (Article 4) of the 1958 Continental Shelf Convention, supra note 23. Itwas added during the negotiations of UNCLOS III. See Nordquist et al., supra note 64, at 912.

127. This is in recognition of the fact that submarine cables do not cause pollution. See,generally, supra notes 80–82.

128. See Nordquist et al., supra note 64, at 915. Interestingly, it was previously intended thatthe coastal state should have the right to control the route to be followed. In the commentary to theequivalent article, Article 70 of the 1956 ILC Draft Articles, it is stated:

The coastal State is required to permit the laying of submarine cables on the seabed ofits continental shelf but in order to avoid unjustified interference with the exploitationof the natural resources of the seabed and subsoil, it may impose conditions concerningthe route to be followed.

See ILC 1956 Draft Articles, supra note 28, at 299. However, UNCLOS, Article 79(3), supra note1, now makes it clear that the coastal state does not have jurisdiction over the route to be followed.This is also supported by discussions during UNCLOS II and UNCLOS III. During UNCLOS II, aVenezuelan amendment for Article 70 of the 1956 ILC Draft Articles would have expressly providedthe coastal state with the right to regulate with respect to the routes to be followed, but it was rejectedon the basis that it failed to provide any standards for the regulations to be made. See reference to thisin Marjorie Whiteman, “Conference on the Law of the Sea: Convention on the Continental Shelf,”American Journal of International Law 52 (1958): 643. At UNCLOS III, China proposed that thedelineation of the course for laying submarine cables on the continental shelf by a foreign state besubject to the consent of the coastal state, but this proposal also was eventually rejected. Referred to

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in Nordquist et al., supra note 64, at 911. For arguments that Article 79(3) does not prohibit coastalstates from regulating the delineation of the cable route, see Takei, supra note 24, at 6–7.

129. Statement by the U.S. representative during the Eighth Session of the ILC, cited in White-man, supra note 128, at 642.

130. UNCLOS, art. 56(2), supra note 1. The meaning of due regard will be dealt with below.131. Ibid., art. 78(2).132. See Nordquist et al., supra note 64, at 915.133. See Beckman, supra note 38, at 7.134. There has been some argument that UNCLOS, Article 79(4), supra note 1, allows a coastal

state to impose additional conditions on cables on its continental shelf if such cables enter its territorialsea. However, such an interpretation would defeat the purpose of allowing the coastal state to subjectthe laying and repair of submarine cables on the continental shelf only to “reasonable measures forthe exploration of the continental shelf and the exploitation of its natural resources” as provided forin Article 79(4). See Beckman, supra note 38, at 7.

135. UNCLOS, art. 79(4), supra note 1.136. For example, Malta has imposed an annual fee for cables transiting its continental shelf.

See Denise Toombs and Roy Carryer, “Jurisdictional Creep and the Retreat of UNCLOS,” paperpresented at the 2010 SubOptic Conference, Yokohama, Japan, 11–14 May 2010. See also the recentSpanish Court decision where it was held that there was no basis for the Ministry of the Environmentto impose a benefit tax on a telecommunication cable outside of Spain’s territorial sea. Telefonica deEspana S.A. v. Ministry of the Environment Supreme Court (Contentious-Administrative Division,5th Chamber), Ruling of 16 June 2008, JUR 2008/211246, available at the ICPC Members Database(restricted access).

137. Examples of states that subject the delineation of cable routes to their consent in-clude China, Provisions Governing the Laying of Submarine Cables and Pipelines, Article 4,Decree No. 27 of the State Council of the People’s Republic of China, 15 February 1989, avail-able at Law Info China Web site (for subscribers only); India, Indian Territorial Waters, Con-tinental Shelf, Exclusive Economic Zone and other Maritime Zones Act, 1976, Act No. 80 of28 May 1976, Article 7(8), UN Division of Ocean Affairs and Law of the Sea (DOALOS),available at www.un.org/Depts/los/LEGISLATIONANDTREATIES; Malaysia, Exclusive EconomicZone Act 1984, Act No. 311, section 22, DOALOS, available at www.un.org/Depts/los/LEGISLATIONANDTREATIES; Saint Lucia, Maritime Areas Act, Act No. 8 of July 18, 1984, Section 13(2),DOALOS, available at www.un.org/Depts/los/LEGISLATIONANDTREATIES; and Uruguay, ActNo. 17,033, 20 November 1998, Article 12, DOALOS, available at www.un.org/Depts/los/LEGISLATIONANDTREATIES.

138. No state appears to have justified its regulations on this basis. It is probable that states thathave adopted regulations on the delineation of the cable route believe that UNCLOS, Article 79(3),supra note 1, which allows the delineation of pipelines to be subject to their consent, also gives themthe authority to regulate the delineation of cable routes.

139. See UNCLOS, Article 79(3), supra note 1; and the discussion on Article 79(3) above,particularly supra note 128.

140. See UNEP/ICPC Report, supra note 3, at 21.141. A survey of the laws of Australia, China, Denmark, Fiji, Finland, France, Germany, Greece,

Iceland, Italy, Japan, the Netherlands, Poland, Singapore, New Zealand, the United Kingdom, andthe United States found that of these countries only China required permits in its claimed EEZ forrepairs to international cables outside of territorial seas. To the best of the author’s knowledge, Indiais the only other known example of a coastal state requiring a permit to repair international cablesoutside of territorial seas. See Burnett, supra note 55, at fn. 19.

China’s national legislation on the laying and repair of submarine cables include the followingrequirements:

Foreign companies who wish to lay cables and survey cable routes on the continentalshelf of China, must notify the SOA and the routes selected must have the consent of the

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SOA. (Article 4, Provisions Governing the Laying of Submarine Cables and Pipelines,supra note 137);

Foreign submarine cables passing sea areas and continental shelves under the jurisdictionof China and international submarine cables and pipelines to be laid from China toany other country or region are subject to the examination and approval of the SOA(Article 4, Measures of the State Oceanic Administration for the Implementation of theAdministrative Provisions Governing the Laying of Submarine Cables and Pipelines,Order No. 3 of the State Oceanic Administration on 26 August 1992);

The owner of submarine cables shall, no later than thirty days prior to the maintenance,renovation or removal of submarine cables, submit to the competent authority a writtenreport about the operation, the causes, time, sea area, operation vessel (Article 6, SOAMeasures on Submarine Cables);

A foreign vessel carrying out any laying and repair activities on the continental shelfof China shall report its location to the competent authority at 0200 GMT every day(Article 18, SOA Measures on Submarine Cables);

It is an offence punishable by fines for an operator at sea not to hold a license issued bythe competent authorities, for a foreign vessel not to report its location as in violationof these measures (Article 20, SOA Measures on Submarine Cables)

Research efforts by the author could not ascertain the exact permit requirements of India. However,Article 7(8) of the Indian Territorial Waters, Continental Shelf, Exclusive Economic Zone and otherMaritime Zones Act, 1976, supra note 137, provides that:

[S]ubject to any measures that may be necessary for protecting the interests of India,the Central Government may not impede the laying or maintenance of submarine cablespipelines on the continental shelf by foreign states provided that the consent of theCentral Government shall be necessary for the delineation of the course for the layingof such cables or pipelines.

The phrase “protecting the interests of India” is sufficiently wide to warrant any type of law orregulation to impede the laying or maintenance of submarine cables.

142. Article 10, Provisions Governing the Laying of Submarine Cables and Pipelines, supranote 137; Article 13, SOA Measures on Submarine Cables, supra note 137. Chinese repair permitstake 2 to 3 weeks on average to obtain and cost thousands of dollars. See Burnett, supra note 55, atfn. 19.

143. Green et al., supra note 75.144. China and India do not appear to have justified their requirement for permits on this basis.145. See, for example, UNCLOS, Article 58(1), read with Article 87(1)(c), Article 79(1), and

Article 79(2), supra note 1.146. Ibid., art. 79(2).147. Ibid., art. 56(2).148. Ibid., art. 78(2).149. A “marine protected area” is defined in World Conservation Union, Resolution 17.38

of the 17th General Assembly of the International Union for Conservation of Nature and NaturalResources (IUCN), Proceedings of the 17th Session of the General Assembly of IUCN and 17thTechnical Meeting, San Jose, Costa Rica, 1–10 February 1988, 104–106, available data.iucn.org/dbtw-wpd/edocs/GA-17th-011.pdf, as “any area of intertidal or subtidal terrain together with their overlyingwaters and associated flora, fauna, historical and cultural features, which has been reserved by law orother effective means to protect all or part of the enclosed environment.”

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150. See United Kingdom Marine Conservation (Natural Habitats) Regulation 2007, available atthe UK Legislation Web site, www.legislation.gov.uk/uksi/2007/1842/contents/made, on the proposedestablishment of protected habitats beyond the UK’s territorial sea up to 200 nautical miles.

151. Toombs and Carryer, supra note 136, at 3.152. Ibid., at 3.153. North American Submarine Cable Association (NASCA) press release, “NASCA Submits

Comments on NOAA Proposed Rule to Revise the Critical Habitat Designation for the EndangeredLeatherback Sea Turtle,” 23 April 2010, available at www.n-a-s-c-a.org/news/.

154. UNCLOS, art. 56(1)(b)(iii), supra note 1.155. See ibid., Articles 211 and 220 on the rights and obligations on states relating to the

prevention of pollution from vessels.156. See supra note 81.157. UNCLOS, arts. 58(1) and 79(1), supra note 1.158. Ibid., art. 194(1).159. Ibid., art. 194(4).160. See UNEP/ICPC Report, supra note 3, at 53. T. S. Agardy, Marine Protected Areas and

Ocean Conservation (Austin, Texas: RG Landes Company, 1997), at 244, has stated that: “the ultimategoal of any marine protected area is marine conservation—that, the protection of critical ecologicalprocesses that maintain the ecosystem and allow for the production of goods and services beneficialto humankind, while allowing for utilization of ocean space and resources that is sustainable in anecological sense.”

161. UNCLOS, art. 58(3), supra note 1.162. See, generally, Bernard H. Oxman, “The Territorial Temptation: A Siren Song at Sea,”

American Journal of International Law 100 (2006): 830; and Sophia Kopela, “The ‘Territorialisation’of the Exclusive Economic Zone: Implications for Maritime Jurisdiction,” paper presented at the 20thAnniversary Conference of the International Boundaries Research Unit on the State of Sovereignty,Durham University, United Kingdom, 1–3 April 2009. As noted by Kopela, at 3, this enhanced“territorialisation” can be seen in: (1) enhancement of competences and jurisdictions granted to thecoastal state; (2) addition of competences and jurisdictions not granted to the coastal state; and(3) restrictions on the freedoms and rights explicitly recognized in favour of third states. She notesthat “territorialisation” may not be an appropriate term in that states have not asserted sovereigntyover the EEZ, but have tried to expand their rights and jurisdiction in such a way as to assert the mostcontrol possible for the protection of their national interests.

163. Kopela, supra note 162, at 2.164. James Kraska, Maritime Power and the Law of the Sea: Expeditionary Operations and

World Politics (New York: Oxford University Press, 2011), at 267.165. The term “due regard” is used liberally in UNCLOS, supra note 1. See Articles 27(4),

39(3)(a), 56(2), 58(3), (60(3), 66(3)(a), 79(5), 87(2), 142(1), 148, 161(4), 162(2)(d), 163(2), 234, and267.

166. The High Seas Convention, supra note 22, Article 2, provided for states to exercise“reasonable regard” to the interests of other states in the high seas. McDougal and Burke, supra note5, at 77, noted that while “the injunction to be reasonable might, thus, have been supplemented bymore specific factors to be taken into account in determining reasonableness in a particular context,”the reciprocal obligation of reasonable regard generally “serves the common interest.” The term“reasonable regard” was changed to “due consideration” before agreement on “due regard” wasreached. Nordquist et al., supra note 121, at 80. Note that the United States treats “reasonable regard”and “due regard” as essentially the same. See Kraska, supra note 164, at 262.

167. Nordquist et al., supra note 64, at 544–545.168. Churchill and Lowe, supra note 37, at 206.169. Kraska, supra note 164, at 263.170. Ren Xiaofeng and Senior Colonel Cheng Xizhong, “A Chinese Perspective,” Marine Policy

29 (2005): 145.171. Kraska, supra note 164, at 266–267.

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172. Fisheries Jurisdiction Case (United Kingdom v. Iceland), [1974] I.C.J. Rep. 3.173. Ibid., para. 68.174. Ibid., para. 67.175. Ibid., para. 69.176. Ibid.177. Ibid., para. 71.178. Ibid., para. 72.179. . Ibid., para. 73.180. Ibid., para. 78.181. MOX Plant Case (Ireland v. United Kingdom) (Provisional Measures), Order of 3 Decem-

ber 2001 (2002) 41 I.L.M. 405.182. Land Reclamation Case by Singapore In and Around the Straits of Johor (Malaysia

v. Singapore) (Provisional Measures), Order of 8 October 2003, International Tribunal for theLaw of the Sea (ITLOS), available at www.itlos.org/fileadmin/itlos/documents/cases/case no 12/Order.08.10.03.E.pdf.

183. See, generally, Arbitration Between Guyana and Suriname, 17 September 2007, para-graph 478, Permanent Court of Arbitration, available at www.pca-cpa.org/upload/files/Guyana-Suriname%20Award.pdf.

184. In the MOX Plant Case, supra note 181, paragraph 84, the duty of cooperation betweenIreland and United Kingdom required that they cooperate in the exchange of information concerningthe risks or effects of the operation of the MOX plant. In the Land Reclamation Case, supra note182, paragraph 99, ITLOS found that Malaysia and Singapore, as part of its cooperation obligations,should exchange information on the assessment of risks or effects of Singapore’s land reclamationworks. In Guyana v. Suriname, supra note 183, paragraph 478, in order to fulfill its obligation toenter into negotiations in good faith on provisional arrangements, the Tribunal found that Guyanashould have informed Suriname of its exploratory plans and given Suriname officials detailed noticeof the planned activities, offered to share the results of the exploration, and provided Suriname withan opportunity to observe the activities.

185. “CIL Workshop Report,” at 38, 40, supra note 76. The CIL Workshop Report has recom-mended that “Cable ships which are engaged in cable laying or repair operations should officiallynotify the relevant government agency of the details of the ship, its location, its schedule and itsplanned activity and if requested by the State, provide a report at the end of its activities.”

186. UNCLOS, art. 1(1), supra note 1. The deep seabed area begins where a coastal state’scontinental shelf ends.

187. Ibid., arts. 1(3) and 134. Article 133 defines “resources” as “all solid, liquid or gaseousmineral resources in situ in the Area at or beneath the seabed, including polymetallic nodules.”

188. Ibid., art. 137.189. Although ibid., Article 87(1)(c), states that the freedom to lay submarine cables is subject

to Part VI on the continental shelf, Part VI would not be applicable to the laying of cables in the Area,which is beyond national jurisdiction.

190. See Scott Coffen-Smout and Glen J. Herbert, “Submarine Cables: A Challenge for OceanManagement,” Marine Policy 24 (2000): 444.

191. UNCLOS, art. 87(2), supra note 1.192. Churchill and Lowe, supra note 37, at 240.193. Memorandum of Understanding Between the International Cable Protection Committee

and the International Seabed Authority signed on 15 December 2009, Annex to Note by the Sec-retariat at the 16th Session, 26 April to 7 May 2010, International Seabed Authority, available atwww.isa.org.jm/files/documents/EN/16Sess/Assembly/ISBA-16A-INF1.pdf.

194. Ibid.195. Burnett, supra note 41, at 5.196. Ninety-four cable consortium owners succeeded in obtaining damages from a French court

against these fishermen. See Tribunal De Grande Instance De Boulogne Sur Mer (1st Chamber) 28August 2009, File No. 06/00229 DG/LM, available at ICPC Members Database (restricted access).

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197. 1884 Convention, supra note 21.198. COLREGS, Rule 3(g)(i), supra note 25.199. Ibid., Rule 27.200. Ibid., Rule 18.201. For example, Burnett, supra note 41, at 6.202. Ibid., at 6. Arguably, one nautical mile may not be possible in busy areas such as territorial

waters.203. See UNPEP/ICPC Report, supra note 3, at 45.204. Ibid., at 44.205. UNCLOS, arts. 21(1)(c) and 52, supra note 1.206. See Beckman, supra note 38, at 12. The 1884 Convention, supra note 21, applies only

“outside territorial waters to all legally established submarine cables landed on the territories, coloniesor possessions of one or more of the High Contracting Parties” (Article I) because of the assumptionthat parties to the Convention would have sufficient measures in place for the protection of submarinecables within territorial waters as one “cannot imagine a legislator taking measures in relation to theopen sea but not for the territory and territorial waters.” See Renault, supra note 26, at 6.

207. This would be an incentive for masters of vessels to ensure that they take every measureto avoid damaging submarine cables, particularly if Protection and Indemnity Clubs put pressure onowners to ensure that their masters take necessary precautions.

208. This was a specific complaint of U.S. cable owners about their national law, which imposedonly a maximum penalty of only $5,000 for willful injury to submarine cables. This “insignificantmaximum criminal penalty provides little incentive for enforcement authorities to assign full timelegal and investigative personnel to prosecute vessel owners caught damaging a submarine” andwould not even begin to cover the cost of repairs. See Coffen-Smout and Herbert, supra note 190, at444.

209. Examples are China, Singapore, Indonesia, and Japan. See infra notes 212 and 214.210. Examples are Australia and New Zealand. See infra notes 216–228.211. The ICPC has endorsed these cable protection areas. See ICPC, “Recommended Actions for

Effective Cable Protection (Post Installation),” Recommendation No. 6, available at ICPC MembersDatabase (restricted access).

212. Singapore’s legislation does not specify the length of a submarine cable corridor and statesthat a “submarine cable corridor” refers to the “area designated by the Port Master as such.” SeeMaritime and Port Authority Act of Singapore, Section 46(8), (Cap 170A), available at SingaporeStatutes Web site, statutes.agc.gov.sg/. Indonesian legislation provides for the establishment of asubmarine cable corridor of 3,500 meters. See Article 1 of KM No. 94 Tahun 1999, available atICPC Members Database (restricted access). Japanese legislation provides for the designation of anarea not exceeding 1,000 meters. See Japan, Telecommunications Business Law, Law No. 86 of 25December 1984, Article 141(1), available at ICPC Members Database (restricted access). China’slegislation allows protection zones of 50 to 500 meters. See Article 7, Provisions on the Protectionof Submarine Cables and Pipelines, supra note 137.

213. This may be the reason why cable companies are generally opposed to submarine cablecorridors as they are too narrow to accommodate the industry requirement of a minimum separationbetween cables of 500 meters or more to avoid damage during cable repairs. See Coffen-Smout andHerbert, supra note 190, at 447.

214. See Article 1, Indonesia’s KM No. 94 Tahun 1999, supra note 212; and Article 141(4) ofJapan’s Telecommunications Business Law, supra note 212. However, Japan’s legislation also requiresthe cable owner to compensate any loss to any person holding a fishery right that has been revoked as aresult of the designation of a submarine cable corridor. See Article 142, Japan’s TelecommunicationsBusiness Law. Interestingly, Singapore’s legislation does not prohibit anchoring in submarine cablecorridors, but requires that the owner or a master deposit a sum of money as may be required bythe public telecommunication licensee in order to meet the costs of making good the damage to thesubmarine cable before the vessel is granted port clearance. See Section 46(8), Maritime and PortAuthority of Singapore Act, supra note 212.

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215. The legislation of Australia and that of New Zealand have been described as examples ofmodel cable protection legislation. Michael Schwartz “Legal Protection of Submarine Cables in SouthAmerica,” 12 August 2009, Developing Telecoms, available at www.developingtelecoms.com/legal-protection-of-submarine-cables-in-latin-america.html.

216. In 2005, Australia introduced a new regime on the protection of cables. See Part 2, Schedule3A, Telecommunications Act 1997, Australasian Legal Information Institute, available at www.austlii.edu.au/au/legis/cth/consol act/ta1997214/sch3a.html.“Australian waters” is defined as the waters of the territorial sea, EEZ, and the sea abovethe part of the continental shelf of Australia that is beyond the limits of its EEZ. See Clause 2,Schedule 3A, Telecommunications Act 1997.

217. See Stuart Kaye, “The Protection of Platforms, Pipelines and Submarine Cables UnderAustralian and New Zealand Law” in Maritime Security: International Law and Policy Perspectivesfrom Australia and New Zealand, eds. Natalie Klein, Joanna Mossop and Donald Rothwell (NewYork: Routledge, 2010), 199.

218. Clause 18, Schedule 3A, Telecommunications Act 1997, supra note 216.219. This includes the use of certain fishing gear, certain fishing activities, and any activity that

involves a serious risk that an object will connect with the seabed if that will result in damage to thesubmarine cable. See ibid., Clause 10, Schedule 3A.

220. Ibid., Clause 11, Schedule 3A.221. See ibid., Clause 36, Schedule 3A.222. See ibid., Clause 37, Schedule 3A.223. Ibid., Clause 45, Schedule 3A.224. Ibid., Clauses 20–21, Schedule 3A.225. New Zealand, Submarine Cables and Pipelines Protection Act 1996, No. 22, Sections

12 and 15, available at the New Zealand Legislation Web site, www.legislation.govt.nz/act/public/1996/0022/latest/DLM375803.html?search=ts act submarine+cables resel&p=1&sr=1.

226. Ibid., sec.13(1).227. Ibid., sec. 13.228. See ibid., secs. 16–23.229. Takei, supra note 24, at 10.230. See Robert Beckman and Douglas Burnett, “Co-Chair’s Provisional Report (2011),” Work-

shop on the Protection of Submarine Cables, 14–15 April 2011, Singapore, 5, CIL, available atcil.nus.edu.sg/wp/wp-content/uploads/2011/02/ Workshop Report 21 April 2011.pdf.

231. The 1956 Draft Articles, supra note 28, at 294, contained an additional provision onsubmarine cables, Article 64, which provided that: “Every State shall regulate trawling so as toensure that all the fishing gear used shall be so constructed and maintained as to reduce to theminimum any danger of fouling submarine cables or pipelines.” This was based on Resolution I ofthe London Conference of 1913 convened by the British government to adopt further measures forthe protection of submarine cables prompted by increasing incidents of cable damage by fishermen.See Rene-Jean Dupuy and Daniel Vignes, A Handbook on the New Law of the Sea, Vol. 2 (Leiden:Martinus Nijhoff, 1992), chap. 18. However, the United States objected to this article on the basisthat it would be undesirable to impose such an obligation without providing for uniformity in theregulation to be adopted and that this could be best achieved through an international conference. SeeMcDougal and Burke, supra note 5, at 846.

232. See Nordquist et al., supra note 121, at 270, 273, and 278.233. UNCLOS, Article 113, supra note 1, is also different from the 1884 Convention, supra

note 21, Article II, in that the latter stated that such criminal sanctions were “without prejudice to anycivil action for damages.” Article 113 would not be a bar to a civil action based on general rules oftort law, but it is arguable whether Article 113 would provide the basis for an implied civil remedy inall jurisdictions. In the US Federal Court, it was found that Article II of the 1884 Convention, whichhad been implemented in domestic legislation through the Submarine Cables Act, 29 February 1888,47 U.S. Code 21, did not give an implied private civil remedy for submarine cable owners againstparties who allegedly damage such cables. See American Tel & Tel Co v. M/V Cape Fear, 763 F Supp.97 (DNJ 1991).

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234. Ibid., Article 113, is also different from the 1884 Convention, supra note 21, Article 11,in that the former added the sentence “this provision shall apply also to conduct calculated or likelyto result in such breaking or injury.” This sentence first appeared during discussions at UNCLOSIII prompted by concerns relating to the potential for cable damage by fishing vessels anchoring topipelines in the North Sea and exploration activities by researchers around cables. Accordingly, thesentence “conduct calculated or likely to result in such breaking or injury” in Article 113 “widensthe scope of the provision and makes the intent or attempt to break or injure a submarine cable orpipeline a punishable offence.” See Nordquist et al., supra note 121, at 268. It has been observed thatthis is an improvement over the 1884 Convention where “the cable owner must wait until the damageis done before sanctions are triggered.” See Burnett, supra note 14, at 23.

235. UNCLOS, art. 113, supra note 1.236. Ibid., Article 113, also added the words “by a ship flying its flag or by a person subject

to its jurisdiction.” These words were not in the 1884 Convention, supra note 21, Article II, and firstmade its appearance in the 1958 Convention on the High Seas, supra note 22, Article 27. This was toensure that it was clear that the legislative measures referred to are applicable only to those subjectto such legislation under general international law; that is, a state could not take legislative measuresagainst nationals of another state, only against its own ships or nationals. See McDougal and Burke,supra note 5, at 847; and Nordquist et al., supra note 121, at 268. Takei, supra note 24, at 17–18, notedthat there are also “[s]tate practice and writings that supports universal jurisdiction over the breakingof submarine cables.”

237. Ibid., Article 114, limits the liability of the owner to the cost of the repairs. This “excludesany notion of liability for replacing a damaged cable or pipeline or of obligating the responsibleperson (s) for any financial losses incurred by the owner of the cable or pipeline as a result of thedamage.” Nordquist et al., supra note 121, at 273.

238. 1884 Convention, supra note 21, Article VII, was followed in Article 65 of the 1956 ILCDraft Articles, supra note 28, and subsequently adopted in the 1958 Convention on the High Seas,supra note 22, Article 29. However, Article VII provided for a procedure on how an indemnity couldbe claimed:

In order to be entitled to establish a claim to such compensation, a statement, supportedby the evidence of the crew, should, whenever possible, be drawn up immediately afterthe occurrence; and the master must, within twenty-four hours after his return to ornext putting into port, make a declaration to the proper authorities. The latter shallcommunicate the information to the consular authorities of the country to which theowner of the cable belongs.

The reason for the omission of this procedure in the 1956 Draft Articles, the 1958 Convention on theHigh Seas, and UNCLOS is that “[i]t is anticipated that more detailed guidelines will be included inthe laws and regulations adopted by each State under Article 115.” See Nordquist et al., supra note121, at 278.

239. This is to make clear that compensation cannot be claimed if there has been any negligenceon the part of the ship. See ILC Draft Articles, supra note 28, at 294.

240. See Nordquist et al., supra note 121, at 278.241. Ibid., at 277.242. See Coffen-Smout and Herbert, supra note 190, at 444.243. See, for example, Sections 21 and 22, US Submarine Cables Act of 1888, supra note

233, which provide for separate offenses for willful injury and negligent injury to submarine cables;Section 7, Australia’s Submarine Cables and Pipelines Protection Act 1963, Act No. 61 of 1963 asamended, Australian Government ComLaw, available at www.comlaw.gov.au/Details/C2005C00582;Section 11, New Zealand’s Submarine Cables and Pipelines Protection Act 1996, supra note 225; andSection 3, U.K. Submarine Telegraph Act 1885, available at U.K. Government Legislation Web site,www.legislation.gov.uk/ukpga/Vict/48-49/49.

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244. The penalty in the United States is $5,000 for willfully breaking a submarine cable andfor negligently breaking one is $500. See Sections 20 and 21, US Submarine Cables Act of 1888,supra note 233. In Australia, the fine is set at $2,000 for intentional breaking and $1,000 for negligentbreaking. Section 7, Submarine Cables and Pipelines Protection Act 1963, supra note 243. This hasbeen updated in Schedule 3A, Telecommunications Act 1997, supra note 216. In New Zealand, Section11, Submarine Cables and Pipelines Protection Act 1996, supra note 225, the fine is substantiallyhigher at up to $250,000.

245. Australia, Clause 2, Schedule 3A, Telecommunications Act, supra note 216; New Zealand,Submarine Cables and Pipelines Protection Act 1996, supra note 242, secs. 12 and 15.In Australia, the ACMA has established protection zones over the Southern Cross Cable and Aus-tralia Japan Cable, which are within protection zones up to 15.7 kilometers wide and extend-ing up to 75 kilometers from shore (see www.acma.gov.au/webwr/ assets/main/lib310064/sydneysubmarine cable pz.pdf); and the SEA-ME-WE3 cable,which is 3.7 kilometers wide and ex-tends up to 94.5 kilometers from shore (see www.acma.gov.au/webwr/ assets/main/lib100668/perthsubmarine pz%20.pdf).

246. See Yearbook of the International Law Commission, Vol. II, Doc. A/CN.4/97 (1956), at12.

247. Kaye, supra note 217, at 192.248. Interestingly, the 1996 New Zealand Submarine Cables and Pipelines Protection Act, supra

note 225, Section 27, provides that the consent of the attorney general is required for proceedings inrelation to an offense that has been committed outside the territorial sea of New Zealand, onboarda non–New Zealand registered ship, or against a person who is not a New Zealand citizen. This isdesigned to ensure that the act does not create difficulties with other states. See Kaye, supra note 217,at 200.

249. All cable protection zones established in Australia by the ACMA restrict anchoring.250. According to the IMO, it is recognized as the only international body for devel-

oping guidelines, criteria, and regulations on an international level for ships’ routing systems,which include the designation of no anchorage areas. See IMO, available at www.imo.org/safety/mainframe.asp?topic id=770; and IMO, Resolution A.572(14), “Amendments to the General Provi-sions on Ships Routeing,” available at cil.nus.edu.sg/wp/wp-content/uploads/2009/09/Amendments-to-the-General-Provisions-on-Ships-Routeing.pdf.

251. See Stuart Kaye, “International Measures to Protect Oil Platforms, Pipelines and Subma-rine Cables from Attack,” Tulane Maritime Law Journal 31 (2006–2007): 418. This was againhighlighted in December 2010 when the WikiLeaks disclosure of critical infrastructure aroundthe world, including submarine cables and cable landings, was described by the U.S. State De-partment as tantamount to giving terrorists a target list. See Mark Clayton, “WikiLeaks List ofCritical Sites: Is It a Menu for Terrorists?” Christian Science Monitor, 6 December 2010, avail-able at www.csmonitor.com/USA/Foreign-Policy/2010/1206/WikiLeaks-list-of-critical-sites-Is-it-a-menu-for-terrorists.

252. See “Vietnam Makes More Arrests over Submarine Cable Theft,” Brunei Press, 25 June2007, available at www.brusearch.com/news/11336. The fishermen stole the cables thinking that thescrap copper in them would be valuable. As they also took the optical amplifiers that are necessaryfor the operation of cables that had to be manufactured in France; the cables took 79 days to repair.See Beckman, supra note 38, at 15.

253. As pointed out by Beckman, supra note 38, at 14, the practical effect of this is that, whena submarine cable beneath the high seas or EEZ is broken or damaged by intentional conduct, therehas been no crime under any state’s laws.

254. See Kaye, supra note 251, at 419.255. Ibid.256. There is only one reported case of states parties relying on 1884 Convention, supra note

21, Article X, to demand from a master of a vessel suspected of breaking submarine cables evidenceof the vessel’s nationality. This was the boarding and inspection of log books of the Soviet trawlerNovorossiisk by officers of the U.S. naval vessel Roy O Hale in 1959 after the U.S. naval vessel had

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grounds to suspect that the trawler was responsible for cable breaks in the area. See “US and USSRExchange Notes on Damage to Submarine Cables,” Department of State Bulletin, 27 April 1959,available at ICPC Members Database (restricted access).

257. See UNCLOS, art. 110, supra note 1.258. See Robert Beckman, “International Responses to Maritime Terrorism,” in Global Anti-

Terrorism Law and Policy, eds. Victor Ramraj, Michael Hor and Kent Roach (Cambridge: CambridgeUniversity Press, 2005), 268.

259. In 1869, the United States drafted a convention on the protection of submarine cables,which was to be the basis of discussions at an international conference and which provided that actsof destruction committed on the open sea could be suppressed by classing them as acts of piracy.Consideration of the draft convention was halted by the outbreak of the Franco-German War andthis proposal was not discussed at the 1882 Paris Conference leading to the adoption of the 1884Convention. See Renault, supra note 26, at 3.

260. See Beckman, supra note 38, at 12. However, it should be noted that the 1956 ILC DraftArticles Commentary, supra note 28, at 28, on the intent behind the meaning of the words “in aplace outside the jurisdiction of any State” provides that “the Commission had chiefly in mind actscommitted by a ship or aircraft on an island constituting terra nullius or on the shores of unoccupiedterritory.” This undermines the argument that “outside the jurisdiction of any State” cannot beinterpreted to mean outside areas of territorial sovereignty or high seas.

261. Samuel Pyeatt Menefee, “Foreign Naval Intervention in Cases of Piracy: Problems andStrategies,” International Journal of Marine and Coastal Law 14 (1999): 363–364.

262. See Beckman, supra note 38, at 14.263. This is because it allows a state to establish jurisdiction without requiring any nexus to

the prosecuting state except the presence of the offender. See Douglas Guilfoyle, “Treaty Jurisdictionover Pirates: A Compilation of Legal Texts with Introductory Notes,” prepared for the 3rd Meeting ofWorking Group 2 on Legal Issues of the Contact Group off the Coast of Somalia, Copenhagen, 26–27August 2009, 4, available at ucl.academia.edu/DouglasGuilfoyle/Papers/116803/Treaty-Jurisdiction-over-Pirates–A-Compilation-of-Legal-Texts-with-Introductory-Notes.

264. If all states are parties to one of the conventions, a person who commits an offense underthat convention will have no place of refuge and theoretically should be effectively prosecuted andpunished.

265. See “CIL Workshop Report,” supra note 76, at 28–31.266. See Beckman, supra note 38, at 14. Article 10 of the ICPC Draft Convention, supra note

95, also provides that “all States cooperate in the exchange of information, participation in exercises,and mutual support of actions to deter, prevent or punish individuals or groups of individuals whoengage in or threaten to engage in hostile actions against submarine cables and cable ships.”

267. States parties are free to choose the forum to settle disputes concerning the interpretation orapplication of UNCLOS. They can choose either the International Court of Justice, the InternationalTribunal for the Law of the Sea, Arbitration under Annex VII of UNCLOS or Special Arbitration forcertain specified disputes. Decisions of such courts or tribunals are final and binding on the parties.See UNCLOS, art. 287, supra note 1.

268. Ibid., art. 297(1)(a).269. Ibid., art. 297(1)(b).270. See Beckman, supra note 38, at 12.271. See Robert Beckman, “1982 UNCLOS: A Legal Framework for Cooperation between

Cable Companies and Coastal States,” presentation at the ICPC Plenary Meeting, Mauritius, 1–3June 2010, CIL, available at cil.nus.edu.sg/wp/wp-content/uploads/2009/09/ Beckman-ICPC-June-2010-Mauritius.pdf. However, it should be borne in mind that flag states, particularly the openregistries or “flags of convenience” such as Panama and the Marshall Islands, may lack such politicalwill and/or incentive to institute proceedings as their interests are not directly affected.

272. See “CIL Workshop Report,” supra note 76, at 24.273. Beckman and Burnett, “Co-Chairs’ Provisional Report,” supra note 230, at 4.274. Ibid.

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275. See International Telecommunications Union (ITU), available at www.itu.int/net/about/index.aspx.

276. See ICPC, available at www.iscpc.org/.277. There have been three Track 2 regional workshops on submarine cables held since 2009. In

May 2009, the China Institute for Marine Affairs (CIMA) and the Center for Ocean Law and Policy(COLP) organized a Regional Workshop on Submarine Cables in Beijing (workshop report is availableat cil.nus.edu.sg/wp/wp-content/uploads/2009/10/ Workshop Report on Submarine Cables.pdf). InDecember 2009, the CIL Workshop on Submarine Cables and Law of the Sea was orga-nized in Singapore by CIL and cosponsored by CIMA, COLP, ICPC, and the NetherlandsInstitute for the Law of the Sea (NILOS) (see cil.nus.edu.sg/programmes-and-activities/past-events/workshop-on-submarine-cables-and-the-law-of-the-sea-on-14-15-december-2009/). In April2011, CIL and ICPC co-organized a Workshop on the Protection of Submarine Cables in Sin-gapore (see cil.nus.edu.sg/programmes-and-activities/past-events/international-workshop-cil-icpc-workshop-on-the-protection-of-submarine-cables/).

278. “Report of the Outcomes of the Submarine Cable Information Sharing Workshop,” Securityand Prosperity Steering Group Meeting, Cancun, Mexico, 26–29 September 2009.

279. Informal Working Group of the Asia-Pacific Economic Cooperation (APECTEL), StrategicAction Plan, 2010–2015 (2010/TELMIN/024), 5, APEC Information Management Portal, availableat www.aimp.apec.org/Documents/2010/MM/TELMIN/10 telmin8 024.pdf.

280. U.N. General Assembly Resolution No. A/Res/65/37, supra note 17.281. Statement by Ambassador Vanu Gopala Menon, permanent representative of Singapore,

on Agenda Item 74(A): Oceans and Law of the Sea, 7 December 2010, Ministry of Foreign Affairsof Singapore, available at app.mfa.gov.sg/pr/read content.asp?View,15421.

282. U.N. General Assembly Resolution No. A/Res/65/37, supra note 17, para. 121.283. McDougal and Burke, supra note 5, at 11.284. Ibid.285. See ibid., at 12.286. These suggestions can be found in Beckman and Burnett, “Co-Chairs’ Provisional Report,”

supra note 230, at 8–10.

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