The International Legal Regime of Submarine Cables: a Global Public Interest Regime

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THE INTERNATIONAL LEGAL REGIME OF SUBMARINE CABLES: A GLOBAL PUBLIC INTEREST REGIME

Daria Shvets

TESI DOCTORAL UPF / 2020

DIRECTORS DE LA TESI

Dra. Marta Abegón Novella

Dr. Angel Rodrigo Hernández

Departament de Dret

ABSTRACT

This thesis, entitled The International Legal Regime Of Submarine Cables: A Global Public Interest Regime, aims to analyze the legal regime governing submarine cables, identify its deficiencies and examine how they might be addressed by international law. The main idea of this research is that modern legal regime of submarine cables is fragmented and incomprehensive and consequently requires substantial and institutional changes. The study consists of three sections: the first section is devoted to the legal nature of submarine cables as an object of regulation; the second section addresses current legal regime of submarine cables on several levels such as public international law, domestic law of states and private international law; the third section, consolidating the analysis made in two previous sections, presents suggestions on how the existing legal regime might be changed to provide better submarine cables governance.

RESUMEN

La presente tesis doctoral, que lleva por título El régimen jurídico internacional de los cables submarinos: un régimen de interés público global, tiene como objetivo analizar el régimen jurídico que rige los cables submarinos, identificar sus deficiencias y examinar cómo podrían ser abordados por el derecho internacional. La idea principal de esta investigación es que el régimen jurídico moderno de los cables submarinos es fragmentado e incompleto y, en consecuencia, requiere cambios sustanciales e institucionales. El estudio consta de tres secciones: la primera sección está dedicada a la naturaleza jurídica de los cables submarinos como objeto de regulación; la segunda sección aborda el régimen jurídico actual de los cables submarinos en varios niveles, como el Derecho internacional público, el derecho interno de los Estados y el Derecho internacional privado; la tercera sección, que consolida el análisis realizado en dos secciones anteriores, presenta sugerencias sobre cómo se podría cambiar el régimen jurídico existente para proporcionar una mejor gobernanza de los cables submarinos.

RESUM

Aquesta tesi, titulada El règim jurídic internacional de cables submarins: un règim d'interès públic global, pretén analitzar el règim jurídic que regula els cables submarins, identificar-ne les deficiències i examinar com poden abordar el dret internacional públic. La idea principal d'aquesta investigació és que el règim jurídic modern dels cables submarins està fragmentat i incomprensiu i, per tant, requereix canvis substancials i institucionals. L’estudi consta de tres seccions: la primera secció està dedicada a la naturalesa jurídica dels cables submarins com a objecte de regulació; la segona secció aborda el règim jurídic actual dels cables submarins a diversos nivells com el dret internacional públic, el dret intern dels estats i el dret internacional privat; la tercera secció, que consolida l’anàlisi feta en dos apartats anteriors, presenta suggeriments sobre com es pot canviar el règim jurídic existent per proporcionar una millor governança dels cables submarins.

АННОТАЦИЯ

Настоящая диссертационная работа под названием Международный правовой режим подводных кабелей: режим, регулирующий глобальный общественный интерес, имеет своей целью проведение анализа правового режима подводных кабелей, выявление его недостатков и разработку способов их решения в международном праве. Основная идея данного исследования заключается в том, что современный правовой режим подводных кабелей является фрагментированным и неполным и, следовательно, требует изменений в материальном праве, а также институциональных изменений. Исследование состоит из трех разделов: первый раздел посвящен правовой природе подводных кабелей как объекта регулирования; во втором разделе рассматривается текущий правовой режим подводных кабелей на нескольких уровнях, таких как публичное международное право, национальное право государств и международное частное право; в третьем разделе, обобщающем анализ, проведенный в двух предыдущих разделах,

представлены предложения касающиеся изменения существующего правового режима для обеспечения надлежащего регулирования подводных кабелей.

INDEX Page

ACRONYMS AND ABBREVIATIONS ...... xi

INTRODUCTION ...... 3

FIRST SECTION THE LEGAL NATURE OF THE INTERNATIONAL SUBMARINE CABLES REGIME

CHAPTER I. THE ABSENCE OF AN ACCEPTED DEFINITION OF A SUBMARINE CABLE IN INTERNATIONAL LAW

A) DISTINGUISHING CHARACTERISTICS OF SUBMARINE CABLES .... 19 1. Types of submarine cables ...... 19 2. Differences between submarine cables and pipelines ...... 21 a. Environmentally friendly laying process of submarine cables ...... 22 b. Quick integration into the marine environment ...... 24 c. The impact on the marine environment after damage ...... 24

B) CURRENTLY EXISTING DEFINITIONS OF A SUBMARINE CABLE .. 26 1. Definitions included in international law instruments ...... 26 2. Definitions contained in national legislation ...... 28 a. Oman ...... 30 b. New Zealand ...... 30 c. Australia ...... 32 d. China ...... 33 e. United States ...... 34 3. General science definitions ...... 35 4. Non-scientific definitions ...... 37 5. Legal academic definitions ...... 38

C) TENTATIVE DEFINITION OF AN INTERNATIONAL SUBMARINE CABLE AND ITS CRITERIA ...... 39 1. Submarine cable is laid underwater ...... 39 2. Submarine cable includes telecommunications and power cables ...... 40 3. Submarine cable is laid in accordance with international law and in one the maritime zones established by it ...... 40

CHAPTER II. THE INTERNATIONAL LEGAL REGIME OF SUBMARINE CABLES AS A HYBRID REGIME

A) THE VARIETY OF RELATIONS ON THE SUBJECT OF SUBMARINE CABLES ...... 43 1. Diversity of maritime spaces ...... 44 2. Diversity of actors ...... 45 a. States ...... 45 b. Companies ...... 46 1) Legal nature ...... 47 i. Publicly owned companies ...... 47 ii. Privately owned companies ...... 48 iii. Companies of a mixed nature ...... 48 2) Corporate profile ...... 49 i. Legal forms ...... 49 ii. Amount of entities ...... 50 iii. Main profiles of companies ...... 51 iv. Territorial affiliation ...... 52 v. Business models ...... 53 3. Diversity of applicable law ...... 54

B) SUBMARINE CABLES AS A MULTI-FACETED OBJECT OF REGULATION ...... 55 1. Plurality of interests relating to submarine cables ...... 55 a. Interests of states ...... 55 1) Primary interests ...... 56 2) Subsequent interests ...... 56 i. Economic interests ...... 57 ii. Environmental interests ...... 57 iii. Security interests ...... 57 b. Business sector interests ...... 58 c. Interests of individuals ...... 60 2. Submarine cables as an essential infrastructure for providing telecommunications...... 61 a. Defining submarine cables as an infrastructure ...... 61 b. Elements of submarine cables as an infrastructure ...... 62 1) Property ...... 63 2) Location ...... 64 3. Submarine cables as a matter of global public interest ...... 65 a. Definition of global public interest ...... 65 1) Global public interest is not equivalent to individual interests of states ...... 65 2) Global public interest is an interest of an international community ...... 67 b. Recognition of submarine cables as a matter of global public interest ...... 68 c. Legal consequences for submarine cables as a matter of global public interest ...... 70 ii

1) Consideration as a human right ...... 71 2) Consideration as a public good ...... 72

C) INSTITUTIONS GOVERNING SUBMARINE CABLES ...... 73 1. Global governance concept in relation to submarine cables ...... 74 2. International organizations ...... 76 a. International Telecommunication Union ...... 77 b. International Maritime Organization ...... 78 c. Commission on the Limits of the Continental Shelf ...... 78 d. International Seabed Authority ...... 79 3. Specific governance of submarine cables: The International Cable Protection Committee ...... 80 a. The Legal nature of the ICPC ...... 80 b. The status of the ICPC under international law ...... 83 i. International organization is an entity established by a treaty or other international agreement under international law ...... 83 ii. International organization is capable to generate an autonomous will through its organs, and this will is distinct from the will of its members...... 84 iii. International organization has a membership ...... 84 c. The role of the ICPC in submarine cables regulation ...... 84

CHAPTER III. THE ORIGIN AND FIRST ATTEMPTS TO REGULATE SUBMARINE CABLES IN INTERNATIONAL LAW

A) THE ORIGIN OF SUBMARINE CABLES ...... 87

B) FIRST ATTEMPTS TO REGULATE SUBMARINE CABLES IN INTERNATIONAL LAW ...... 90 1. The 1884 International Convention for the Protection of Submarine Telegraph Cables ...... 91 a. The material scope of the 1884 Convention ...... 92 1) Obligation not to cause damage to submarine cables ...... 93 2) Obligation to maintain a distance from a cable ...... 94 3) Obligation to receive a permit from coastal states ...... 95 b. The applicability of the 1884 Convention ...... 96 2. Geneva Convention on the Continental Shelf 1958 ...... 97 a. Appearance of the new maritime zone affecting submarine cables . 98 b. Concept of reasonable measures in the law of the sea ...... 100 3. Geneva Convention on the High Seas 1958 ...... 103 a. Introduction to the concept of respecting other uses of the seabed ...... 104 b. The role of national legislation for the legal regime of submarine cables ...... 105

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C) THE STATUS AND ROLE OF CONVENTIONS IN MODERN INTERNATIONAL LAW ...... 106 1. The legal status of conventions ...... 107 a. Under the law of treaties ...... 107 b. Under customary international law ...... 109 2. The role of conventions in the formation of the current legal regime of submarine cables ...... 111

SECOND SECTION EXISTING LEGAL REGIME OF SUBMARINE CABLES: A FRAGMENTED REGIME

CHAPTER IV. THE LEGAL REGIME OF SUBMARINE CABLES CONTAINED IN THE UNITED NATIONS CONVENTION ON THE LAW OF THE SEA 1982

A) THE LEGAL REGIME OF SUBMARINE CABLES IN MARITIME SPACES UNDER THE SOVEREIGNTY OF COASTAL STATES ...... 121 1. Territorial sea ...... 122 a. Sovereign rights of coastal states ...... 122 b. Limits of the sovereignty of coastal states ...... 123 1) Exercise of innocent passage by foreign vessels ...... 123 2) Limitation of regulation by domestic law ...... 125 2. Archipelagic waters ...... 126 a. Sovereign rights of archipelagic states ...... 126 b. Limits of the sovereignty of archipelagic states ...... 127 1) Recognition of traditional rights on activities exercised in archipelagic waters ...... 127 2) Respect of existing submarine cables ...... 128

B) THE LEGAL REGIME OF SUBMARINE CABLES IN MARITIME SPACES UNDER CERTAIN JURISDICTIONAL RIGHTS OF COASTAL STATES ...... 129 1. Contiguous zone ...... 129 2. Exclusive Economic Zone ...... 131 a. Rights of third states to lay submarine cables ...... 132 b. Conditions to lay submarine cables in exclusive economic zone ... 133 3. Continental Shelf ...... 136 a. The right to lay submarine cables as the right of third parties ...... 137 b. Limits of sovereign rights of coastal states ...... 140

C) THE LEGAL REGIME OF SUBMARINE CABLES IN MARITIME SPACES NOT SUBJECT TO JURISDICTION OF COASTAL STATES ...... 140 1. High seas ...... 140 iv

a. The right of all states to lay submarine cables in the high seas ...... 141 b. Limits of the right of states to lay submarine cables in the high seas ...... 142 c. Mechanisms of the protection of submarine cables in the high seas ...... 144 1) The obligation to define a break or injury to submarine cables in national legislation as a punishable offence ...... 147 2) The obligation to repair damaged submarine cables ...... 149 3) The obligation to indemnify for loss incurred in avoiding injury to submarine cables ...... 151 4) Other means to protect submarine cables ...... 153 2. International Seabed Area ...... 154 a. The right to lay submarine cables in the Area ...... 155 b. Limits of the freedom to lay submarine cables in the Area ...... 155

CHAPTER V. RELEVANT INTERNATIONAL AGREEMENTS AND RESOLUTIONS OF INTERNATIONAL ORGANIZATIONS ON SUBMARINE CABLES

A) CONVENTION ON THE INTERNATIONAL REGULATIONS FOR PREVENTING COLLISIONS AT SEA, 1972 (COLREGs) ...... 159 1. Subject of COLREGs in relation to submarine cables legal regime ...... 160 2. Contribution of COLREGs to the legal regime of submarine cables: safety of navigation of cable ships ...... 161

B) CONVENTION ON THE PREVENTION OF MARINE POLLUTION BY DUMPING OF WASTES AND OTHER MATTER, 1972 AND PROTOCOL TO THIS CONVENTION, 1996 ...... 164 1. Subject of the Convention and its Protocol in relation to submarine cables legal regime ...... 164 2. Contribution of the Convention and its Protocol to the legal regime of submarine cables: marine pollution ...... 165

C) CONVENTION ON LIMITATION OF LIABILITY FOR MARITIME CLAIMS, 1976 ...... 167 1. Subject of the Convention on Limitation of Liability for Maritime Claims in relation to submarine cables legal regime ...... 168 2. Contribution of the Convention on Limitation of Liability for Maritime Claims to the legal regime of submarine cables: limitation of damage caused to submarine cables ...... 169

D) CONVENTION FOR THE SUPPRESSION OF UNLAWFUL ACTS AGAINST THE SAFETY OF MARITIME NAVIGATION, 1988 AND PROTOCOL TO THIS CONVENTION, 2005...... 171 1. Subject of the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation and its Protocol in relation to submarine cables legal regime ...... 172 2. Contribution of the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation and its Protocol to the legal regime of submarine cables: cable ships security ...... 173

E) ENERGY CHARTER TREATY, 1994 ...... 175 1. Subject of the Energy Charter Treaty in relation to submarine cables legal regime ...... 175 2. Contribution of the Energy Charter Treaty to the legal regime of submarine cables: energy-related infrastructure ...... 176

F) CONVENTION ON THE PROTECTION OF THE UNDERWATER CULTURAL HERITAGE, 2001 ...... 178 1. Subject of the Convention on the Protection of the Underwater Cultural Heritage in relation to submarine cables legal regime ...... 178 2. Contribution of the Convention on the Protection of the Underwater Cultural Heritage to the legal regime of submarine cables: competitive uses of the seabed ...... 180

G) INSTRUMENTS OF INTERNATIONAL ORGANIZATIONS ...... 181 1. The concept of soft law ...... 182 2. Instruments concerning submarine cables ...... 184 a. IMO resolutions ...... 184 b. ITU recommendations ...... 185 c. Documents issued by other international organizations ...... 187

CHAPTER VI. DOMESTIC AND PRIVATE LAW INSTRUMENTS REGULATING SUBMARINE CABLES

A) DOMESTIC LAW: IMPLEMENTATION OF STATES’ OBLIGATIONS UNDER THE UNCLOS...... 189 1. Practice of states relating to implementation of international law ...... 189 a. Protection measures ...... 190 1) Protection corridors ...... 190 2) Protection zones ...... 191 b. Detailed regulations ...... 192 c. Specifically designated authority ...... 193 d. Other initiatives ...... 194 2. Comparison of domestic legal provisions on the obligation to establish liability for breaking or injury to submarine cables under the UNCLOS 195 vi

a. Explanation of the object of comparison ...... 195 b. Classification of states by the level of established legal regime ...... 196 c. Implementation of the obligation to establish liability for breaking or injury to submarine cables ...... 198 1) New Zealand ...... 199 2) Denmark ...... 201 3) Russian Federation ...... 204

B) PRIVATE INTERNATIONAL LAW: STANDARD PROVISIONS OF CONTRACTS ...... 206 1. Legal nature of private contracts relating to submarine cables ...... 207 2. Contracts on the installation of submarine cables ...... 208 a. Common practice ...... 208 1) FIDIC standards as a universal model ...... 208 2) Norwegian Subsea Contract NSC 05 as an example of local model ...... 210 b. Standard provisions of submarine cables installation contacts ...... 211 1) Parties and the scope of a contract...... 212 2) Financial obligations and authorizations ...... 214 3) Delivery of work and termination of a contract ...... 215 4) Special provisions ...... 216 i. Environmental requirements ...... 217 ii. Force majeure ...... 217 3. Cable maintenance agreements ...... 218 a. Worldwide Zone Cable Maintenance Agreements ...... 218 b. Private Maintenance Agreements ...... 221

THIRD SECTION CHANGING AND IMPROVING THE INTERNATIONAL LEGAL REGIME OF SUBMARINE CABLES

CHAPTER VII. DEFICIENCIES IN THE LEGAL REGIME OF SUBMARINE CABLES

A) NORMATIVE DEFICIENCIES AND DEFICIENCIES OF CONTENT 227 1. Lack of basic definitions ...... 227 a. Definition of a submarine cable ...... 227 b. Definitions of other essential notions ...... 228 1) Definition of due publicity ...... 228 2) Definition of due notice obligation ...... 229 3) Definition of a cable owner ...... 230 4) Definition of reasonable precautionary measures, beforehand, sacrificed ...... 231 2. Lack of provisions ...... 232 a. Failure to address companies as main subjects participating in cable installation ...... 232 b. Failure to consider submarine cables as an infrastructure ...... 233

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1) Inattention to security of submarine cables ...... 234 2) Unregulated status of out-of-service submarine cables ...... 235 c. Failure to address submarine cables in overlapping zones ...... 236

B) IMPROPER INTERPRETATION AND IMPLEMENTATION OF INTERNATIONAL LAW IN DOMESTIC LEGISLATION OF COASTAL STATES ...... 236 1. Overregulation ...... 237 a. Direct contradiction to international law ...... 238 b. Creating excessive requirements ...... 241 c. Misinterpretation of international law provisions ...... 242 2. Absence of regulation ...... 243 a. Absence of proper governance of submarine cables affairs ...... 243 b. Absence of qualifying the act of damage to submarine cables as a punishable offence ...... 244 c. Absence of norms qualifying theft of submarine cables as an international crime ...... 245 d. Absence of transparency in cable laying and repairing process ...... 246 3. Abundance of regulatory instruments...... 247

C) DEFICIENCIES RELATING TO FULLFILMENT OR CONTROL OF FULFILLMENT OF LEGAL NORMS ...... 249 1. Lack of unique regulating authority ...... 249 2. Collision between norms regulating different activities and interests at sea ...... 250 a. Fishing ...... 251 b. Underwater cultural heritage ...... 252 c. Exploration and exploitation of seabed resources ...... 255 1) On the continental shelf ...... 256 2) In the International Seabed Area: the “common heritage of mankind” ...... 257 3) Consideration of the issue by international law ...... 260 i. Obligation of due regard ...... 260 ii. Institutional cooperation ...... 261

CHAPTER VIII. THE MEANS TO CHANGE THE EXISTING LEGAL REGIME

A) FORMAL CHANGE OF THE LAW OF THE SEA ...... 265 1. Revision of the UNCLOS ...... 266 a. Amendment of the UNCLOS text ...... 266 1) The origin of the issue ...... 266 2) Current procedures ...... 267 i. General procedures ...... 268 ii. Specific procedures...... 269 b. Modification ...... 270 viii

c. Appropriateness of the revision in relation to submarine cables ... 270 2. Revision of other instruments constituting the legal regime of submarine cables ...... 275 a. Changing texts of relevant international agreements and resolutions of international organizations on submarine cables ...... 275 b. Appropriateness of the revision of other instruments in relation to submarine cables ...... 278 3. Adoption of a new separate legal instruments on submarine cables ...... 280 a. Existing proposals ...... 280 b. Appropriateness of the adoption of a new legal instrument in relation to submarine cables ...... 283

B) INFORMAL CHANGE OF THE LAW OF THE SEA ...... 284 1. Application of modern doctrines ...... 285 a. Self-regulated regime ...... 285 b. Global Compact concept ...... 286 c. Convention as a living instrument ...... 288 2. Adequate interpretation of existing norms ...... 292 a. Explaining the need for interpretation ...... 292 b. Defining the proposed solution: interpretation for better implementation ...... 294

CHAPTER IX. IMPROVING THE LEGAL REGIME OF SUBMARINE CABLES

A) REINFORCING THE REGIME OF A HYBRID NATURE ...... 297 1. Reaching the balance in submarine cables relations ...... 297 a. Integrated management of diversified submarine cables activities 297 b. Area-based planning ...... 299 c. Cable protection areas ...... 299 d. Involvement of experience of non-governmental organizations ... 300 2. Extending international cooperation ...... 301 a. Enlargement of submarine cables members’ network ...... 301 b. Neutralization of submarine cables ...... 302 c. Guarantee of uninterruptable work of submarine cables ...... 304 3. Enhancing submarine cables security ...... 304 a. Proper management of cable coordinates ...... 304 b. Amplifying the meaning of certain notions ...... 305 1) Break or injury to submarine cables ...... 305 2) Terrorism threat...... 306 3) Reasonable measures ...... 306 4) Conditions in relation to cables laid on the continental shelf .... 307 c. Responsibility for cyber espionage by means of submarine cables 307 1) Submarine cables immunity ...... 308 2) Submarine cables crossings ...... 309

B) MAKING INSTITUTIONAL ARRANGEMENTS ...... 310

1. Rethinking the status of the ICPC in international law ...... 310 a. Extending the ICPC mandate in regulating submarine cables ...... 310 b. Amplifying geographical representation ...... 312 c. Recognizing the legal personality of the ICPC ...... 312 1) Enhancing the role of NGOs ...... 313 2) Considering the ICPC as an actor of international law ...... 315 2. Establishing regional authorities responsible for submarine cables ...... 317 a. ICPC as an umbrella organization ...... 317 b. Case study: the Arctic region ...... 318 3. Extending the ICPC coordination with existing international organizations ...... 320 a. Observer status in international organizations ...... 320 b. Presence in the United Nations ...... 323 c. Coordination of actions with states ...... 324

CONCLUSION ...... 329

BIBLIOGRAPHY BY SUBJECT ...... 343

DOCUMENTARY SOURCES ...... 361

CITED JURISPRUDENCE ...... 381

ONLINE RESOURCES ...... 383

ACRONYMS AND ABBREVIATIONS

ACMA Atlantic Cable Maintenance & Repair Agreement

CISG Convention on Contracts for the International Sale of Goods

CLCS Commission on the Limits of the Continental Shelf

COLREGs Convention on the International Regulations for Preventing Collisions at Sea

DKCPC Danish Cable Protection Committee

ECOSOC United Nations Economic and Social Council

ESCA European Subsea Cables Association

FAO Food and Agriculture Organization

FIDIC Fédération Internationale Des Ingénieurs- Conseils/International Federation of Consulting Engineers

GA General Assembly

ICANN Internet Corporation for Assigned Names and Numbers

ICJ International Court of Justice

ICPC International Cable Protection Committee

IGF Internet Governance Forum

IHO International Hydrographic Organization

ILC International Law Commission

ILI International Law Institute

IMO International Maritime Organization

ISA International Seabed Authority

ITU International Telecommunication Union

MECMA Mediterranean Cable Maintenance Agreement

MPEPIL Max Planck Encyclopedia of Public International Law

NASCA North American Submarine Cable Association

NAZ North America Zone Agreement

NGO Non-governmental Organization

PIOCMA Pacific and Indian Ocean Cable Mutual Agreement

SEAIOCMA South East Asia and Indian Ocean Cable Maintenance Agreement Extended

SOLAS Convention for the Safety of Life at Sea

STCW International Convention on Standards of Training, Certification, and Watchkeeping for Seafarers

TFTIA Task Force on Telecommunications Infrastructure in the Arctic

UN United Nations

UNCLOS United Nations Convention on the Law of the Sea

UNEP United Nations Environment Programme

UNESCO United Nations Educational, Scientific and Cultural Organization

UNIDO United Nations Industrial Development Organization

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UNTS United Nations Treaty Series

YOKOHAMA Agreement for the Maintenance of Pacific Ocean Cable Systems in the Yokohama Zone

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INTRODUCTION

INTRODUCTION I

A great significance is lately assigned to technologies relating to data transmission as one of the most valuable resources nowadays. Possession of information is of strategic importance in the modern world. States as well as private sector depend on fast and reliable communications on a daily basis. World policy and market economy dictate their conditions and enjoyment of valuable and timely received information is considered as a great advantage.

It is sometimes mistakenly believed that flows of information daily plying around the world are mostly transmitted by satellites. However, the era of satellites’ wide employment1 is now over. More than 95% of all international communications are currently carried by submarine fibre optic cables2. The main advantage of transmitting data via submarine cables comparing to satellites is the quality3 and signal delay time that appears to be much shorter than in the case of transmission via satellites. Although today satellites continue to transmit certain amount of data, costs of transmission via satellites are higher, while submarine cables could carry more data faster and at a lower price4.

1 Satellites were extensively used between 1970th-1980th as the main transmission source for international telephony. See D. Burnett, T. Davenport, R. Beckman, Submarine cables: The Handbook of Law and Policy, Leiden: Martinus Nijhoff, 2014, p. 32. 2 D. Burnett, T. Davenport, R. Beckman, Submarine cables: The Handbook…, op. cit., p. 3; E. Perez-Alvaro, “Unconsidered Threats to Underwater Cultural Heritage: Laying Submarine Cables”, Rosetta, vol. 14, 2013, pp. 54-70, p. 54, available at: http://www.rosetta.bham.ac.uk/issue14/perezalvaro.pdf, last visited 01/09/2020. 3 M. Zubair, Z. Haider, S. Khan, J. Nasir Comsats, “Atmospheric influences on satellite communications”, Przegląd Elektrotechniczny (Electrical Review), vol. 87, Issue 5, 2011, available at http://www.red.pe.org.pl/articles/2011/5/64.pdf, last visited 01/09/2020. 4 V. Foster, S. Briceño-Garmendia, “Africa’s Infrastructure: A Time for Transformation”, co-publication of the Agence Française de Développement and the World Bank, December 1, 2009, p. 146, available at http://documents.worldbank.org/curated/en/246961468003355256/pdf/521020 PUB0EPI1101Official0Use0Only1.pdf, last visited 01/09/2020. 3

Presently more than 450 submarine cables are in operation worldwide5 ensuring timely and stable communications. The amount of cables is constantly growing provided that more cables are under construction or planned to be laid to connect new territories. In 2020 the estimated amount of connected people is four billion, the Internet is operating twenty-five million applications and the amount of transmitted data is fifty trillion gigabits6. All continents are connected by submarine fibre optic cables nowadays with the sole exception of Antarctica where satellite connection remains to be the only option in the circumstances of remoteness and sparsely inhabited territory.

Strategic importance of submarine cables was already realized in the previous century when submarine cables were actively used for military purposes. Provided that anteriorly belligerent states had sent each other messages and notes using ships or couriers subject to inspection and seizure, since nineteenth century all communications started circulating through specifically dedicated submarine cables channels, which can neither be delayed nor interrogated7. In 1914 with the beginning of the World War I, several German submarine cables were cut by belligerent states, since they were used as a part of German’s mechanism for getting economic and political control over areas where territorial acquisitions at that time were impossible8. During the Cold War American military services installed intercept

5 See Submarine Cable Map by TeleGeography, an interactive submarine cables map based on authoritative Global Bandwidth research and updated on a regular basis, available at http://www.submarinecablemap.com, last visited 01/09/2020. 6 D. Burnett, Impacts on international submarine cables by coastline state encroachment based in natural resources and environment in L. Martin, C. Salondis, C. Hioureas, Natural Resources and The Law of the Sea, Exploration, Allocation, Exploitation of Natural Resources in Areas Under National Jurisdiction and Beyond; New York, Juris, pp. 147-184, p. 158. 7 D. Colombos, The International Law of the Sea (Russian translation), edited by A. Zhudro, M. Lazarev, translated by V. Zaitseva, N. Kuzminskiy: Moscow, Progress, 1975, p. 474. 8 Ibid, p. 474. 4 devices on soviet submarine cables and were able to catch signals transmitting phone calls9. In more recent years submarine cables also had a chance to demonstrate their key importance for communications stability in the global context. In December 2006, eight submarine cables (each in several locations) laid to the island of Taiwan had been damaged by the earthquake that disrupted most of communications in Asia. Banking, ticket bookings, electronic communications and many other services were suspended or delayed10. Apart from China breaks also affected Singapore, South Korea, and Japan. It took several months to completely eliminate the consequences of damage.

One more serious incident happened in 2008 in Egyptian waters when a ship had damaged the cable by its anchor11. That affected Internet connection in several states, including Egypt, India, United Arab Emirates, Kuwait, and Saudi Arabia12. Phone calls and the Internet traffic had been significantly reduced and reparation of the

9 E. A. Baikov, G. L. Zykov, Tainy podvodnogo spionazha (Тайны подводного шпионажа), Moscow: Veche, 2002, p. 83 (in Russian); HostingManager, “Soobcheniya v glubine: udivitelnaya istoriya podvodnogo cabelya”(Сообщения в глубине: удивительная история подводного кабеля), 9 of January, 2015, available in Russian at https://habrahabr.ru/company/ua-hosting/blog/247471/, last visited 01/09/2020. 10 C. Sang-Hun, W. Arnolddec, “Asian Quake Disrupts Data Traffic”, The New York Times, 28 of December, 2006, available at: http://www.nytimes.com/2006/12/28/business/worldbusiness/28quake.html, last visited 01/09/2020; W. Qiu, “Submarine Cable Networks. Submarine Cables Cut After Taiwan Earthquake in Dec 2006”, BBC News, 11 of March, 2011, available at http://submarinenetworks.com/news/cables-cut-after-taiwan- earthquake-2006, last visited 01/09/2020; “Asia communications hit by quake”, BBC News, 27 of December, 2006, available at: http://news.bbc.co.uk/2/hi/asia- pacific/6211451.stm, last visited 01/09/2020. 11 B. Johnson, “How One Clumsy Ship Cut Off the Web For 75 Million People”, The Guardian, 1 of February, 2008, available at https://www.theguardian.com/business/2008/feb/01/internationalpersonalfinan cebusiness.internet, last visited 01/09/2020; “Severed Cables Disrupt Internet”, BBC News, 31 of January, 2008, available at http://news.bbc.co.uk/2/hi/technology/7218008.stm, last visited 01/09/2020. 12 “Work Begins To Repair Severed Neе”, BBC News, 2008, available at: http://news.bbc.co.uk/2/hi/technology/7228315.stm, last visited 01/09/2020.

5 damaged cable required participation of nearly fifty specialists, two cable ships and took around a week.

In 2011 when an earthquake Honshu occurred in Japan it nearly brought Japan close to the loss of connection with the external world. There were about twenty submarine cables laid to this country at that time and six of them were cut affecting several Asian economies including China, Japan, Malaysia, and the Philippines.13

One of the latest faults occurred in April 2020 when the cable Asia- Pacific Gateway was out of service for three days due to a break in one of the cable sections. Three days passed until the normal connectivity was reestablished between Hong Kong and Vietnam. The cable is carrying around sixty percent of the Vietnam’s traffic and thus, the cable disruption was noticeable in terms of Internet speed slowdown reflected in freezing videos, not responding pages and failures to download files14. The cable disruption coincided with a period of lockdown in Vietnam due to a global pandemic caused by the covid-19 and increased demand on online services. Therefore, it posed a great pressure to the cable owner for the cable’s prompt repair.

The statistics shows that approximately two hundred submarine fiber-optic cable faults take place every year worldwide15. Reasons may include environmental such as tsunamis, earthquakes,

13 D. Burnett, “Impacts on international submarine cables…”, op.cit., p. 161; Submarine Cable Information Sharing Project: Legislative Practices and Points of Contact, Cybersecurity Policy and Asia Pacific Section, Department of Broadband, Communications and the Digital economy, Australia, 2012, Asia-Pacific Economic Council, p. 3, available at https://www.apec.org/- /media/APEC/Publications/2012/3/Submarine-Cable-Information-Sharing- Project/2012_tel_submarineproject.pdf, last visited 01/09/2020. 14 S-M. Ewudolu, “Undersea cable faults cause Internet chaos in Vietnam, Cambodia & Lao PDR”, Submarine Telecoms Forum, 2 of June 2020, available at https://subtelforum.com/cable-faults-impact-internet-in-vietnam-cambodia-laos/, last visited 20/06/2020, last visited 01/09/2020. 15 D. Burnett, “Note to Navy: It’s time to pay attention to security for undersea cables—crucial to global communications and commerce, and vital to our national interests”, Proceedings, U.S. Naval Institute, Annapolis, Maryland 2011, (410) 268- 6110, pp. 67-71, p. 67. 6 underwater landslides, and human-made: anchors, improperly used fishing equipment, intentional cut, et cetera. Each case of cable break is individual and requires great financial resources, manpower and what is more important, the time.

The role of submarine cables for modern world is crucial. It became especially clear that reliable communications infrastructure is in high demand with the recent outbreak of the covid-19 pandemic in the end of 2019 which turned a good part of the world to online mode. Governments (national authorities and local administrations), business (big corporations and small companies), institutions (universities and banks) and individuals were forced to rapidly learn how to work, buy, study, entertain and communicate online. That became possible due to an extensive network of submarine cables supporting telecommunications which managed to bear an unusual demand on online services.

Consequently, submarine cables are of tremendous importance for global communications and considering such significance, this critical infrastructure deserves strong and adequate governance. Hence, it is worth examining if the current legal regime of submarine cables could be considered as providing an adequate regulation and if it requires significant changes. This constitutes the research question of the thesis.

The aim of the thesis is to analyze deficiencies existing in the modern legal regime of submarine cables, to examine how these deficiencies might be addressed by international law and to propose solutions that might be taken to improve the existing governance. For this purpose, a profound analysis of legal norms of various levels constituting the legal regime of submarine cables is offered in the thesis: international law, domestic law of states and private law norms.

Therefore, the principal idea of the thesis is that the currently existing legal regime of submarine cables is a hybrid regime including interests of several actors such as public and private institutions and constitutes a global public interest. Due to a variety of legal relations,

7 several levels of regulations and lack of a central governance the regime appears to be fragmented and incomprehensive and thus, requires substantive and institutional changes.

To address this, the thesis dedicates significant attention to the legal nature of submarine cables as an object of a global public interest accumulating various legal relations of different types and characteristics. The analysis of the presence of different actors, interests and institutions involved in submarine cables governance contributes to better understanding of the origin of complications and leads to the formulation of relevant findings to constitute an outcome of the thesis.

There is a variety of issues discussed in international law nowadays, but this thesis is dedicated to a rarely addressed and unfairly neglected topic. From this perspective, the thesis mostly falls under the scope of the law of the sea. However, it also enters into other fields of international law such as the law of treaties, the law of international organizations, maritime law, telecommunications law, and cyber security law.

There are several academic values brought by the thesis to the scientific community. The relevance is expressed by the certainty that it is one of the first works deeply examining the legal regime of submarine cables not only under international law but also bringing the private law perspective into the research. Constant updates during the course of the work with regard to latest changes in submarine cables industry and use of modern online services make this thesis not only pursuing an academic achievement but also being suitable for practical use. The peculiarity of the topic requires not only an analysis of legal sources, but also of policy statements, industry workshop presentations, the information contained on the websites, et cetera. The topic of the thesis is of a high importance due to consideration of submarine cables as a critical infrastructure. In a changing world gradually shifting its focus towards online services the question of proper regulation of international

8 communications is expected to become more and more relevant in international community.

The contribution of the thesis to the legal science consists in defining a notion of a submarine cable as an object of legal regulation under international law, identifying legal nature of submarine cables, classifying main actors and interests concerned, defining submarine cables as a global public interest, and categorizing principal legal instruments presently governing submarine cables.

III

The present work encounters several practical obstacles in the process of research. First is the lack of doctrinal sources, scholarly works, and academic studies. The topic remains to be not a highly debated area of law and not many contributions have been made so far. Second is a complexity of finding national legislation as an implementation of international law to be able to evaluate the level of application. Not all domestic laws could be accessed online and there is a lack of official translation into English made by governmental authorities that imposes restriction on comprehensively relying on the source. Third is a limitation of sources used in the thesis by those written in English, Russian and Spanish languages as working languages of the author. It is, however, assumed that the most relevant information can be found English as an international language of scientific research.

To address the issue of methodology, primary and secondary sources were used to conduct the research in the framework of the thesis. Primary sources include normative sources such as several international conventions regulating law of the sea matters along with international conventions from adjacent areas of law such as telecommunications, maritime and energy law; domestic legal acts of states as an implementation of international law; legal instruments issued by governmental and non-governmental international organizations (best practices and recommendations); and legal

9 instruments coming from private law such as contracts on laying, maintenance and other cable-related activities. Secondary sources refer to a legal doctrine, practical information taken from the industry, relevant press articles, and websites of institutions of various nature.

Concerning the structure, this thesis consists of three sections, each including three chapters. The first section is dedicated to the legal nature of submarine cables as an object of regulation. The second section addresses current legal regime of submarine cables on several levels. The third section, consolidating the analysis made in first two sections, is aimed at suggesting how the existing legal regime might be changed to provide better submarine cables governance.

To define the legal nature of submarine cables their features and peculiarities are to be addressed at the beginning. Thus, the first chapter is focused on distinguishing characteristics of submarine cables making an accent on different types of submarine cables existing nowadays and comparing cables to pipelines to underline their diversities. It continues with analysis of a wide range of definitions of a submarine cable coming from various sources specifying that none of them is suitable to be used in international law. Following this statement a tentative definition is formulated by the author as follows: international submarine cable is an underwater cable, irrespective of its type, designed for service on the seabed, laid in established maritime areas in accordance with international law with the purpose of transmitting electric current and telecommunications signals. Chapter two goes deeper into the question of a legal nature of submarine cables and explains why the regime of submarine cables might be considered as a hybrid legal regime. That is due to the variety of legal relations concerning submarine cables taking place in various maritime zones, between different actors and different law applicable to such relations. Submarine cables are further examined from the perspective of the plurality of interests around them and defined as an essential

10 infrastructure for providing telecommunications that also contributes to the hybridity of the legal regime. A special attention is given to the analysis of submarine cables as matter of global public interest. Chapter two concludes with an institutional issue concerning global governance concept in relation to submarine cables, lists international organizations involved in submarine cables governance and brings a special attention to the role of the ICPC in submarine cables regulation. Chapter three contributes to the thesis from a historical point of view providing insights on the issue of origin of submarine cables regulation and first attempts to regulate them in the form of international conventions also examining their status in modern international law.

The second section covers the question of the present legal regime of submarine cables and explains why it is considered to be a fragmented regime. Due to several levels of regulation there is a lack of entire coordination of regulating efforts and thus, the regime appears to be fragmented. It begins with chapter four entirely dedicated to the UNCLOS as the main instrument of the law of the sea. It logically examines legal norms concerning submarine cables in this international agreement in the following order: regulation of cables in maritime spaces under the sovereignty of coastal states, in maritime spaces under certain jurisdictional rights of coastal states and in maritime spaces not subject to jurisdiction of coastal states. In chapter five other international agreements serving to complement the legal regime of submarine cables established by the UNCLOS are examined. All of them are analyzed in two dimensions: the matter of subject covered by these international agreements and a specific contribution each of them makes to the legal regime of submarine cables. Chapter six maintains its focus on the lower level of regulation. It analyses how submarine cables are regulated in domestic law as an implementation of international law provisions. For this purpose, a practice of states is thoroughly examined with a concrete example of comparing three domestic jurisdictions. Chapter six, the last in this section, follows with instruments of private international law regulating submarine cables. It addresses the legal

11 nature of private contracts on submarine cables and gives an understanding of principal provisions regulating submarine cables contained in cable installation and maintenance agreements.

The third section links two first sections together and is designed to answer the research question. Therefore, chapter seven is focused on the deficiencies of the legal regulation of submarine cables to stipulate that changes are required. It structures and classifies main problems into three main categories: normative deficiencies and deficiencies of content; improper interpretation and implementation of international law by national governments in their domestic legal orders; and deficiencies relating to fulfillment or control of fulfillment of legal norms. Chapter eight is designed to answer the question of how submarine cables legal regime might be changed. For this purpose, it analyses the possibility to change the governance by applying a formal procedure, in particular, amending the UNCLOS and other relevant agreements as well as concluding a new international agreement. It follows with the option of informal change examining possible application of modern doctrines and proper interpretation of existing norms. Chapter nine, the last chapter of the thesis, is focused on improvements that might be suggested to change the legal regime of submarine cables. The first set of measures includes the reinforcement of the regime of a hybrid nature, the regime corresponding to the legal nature of submarine cables. Within these measures reaching the balance in submarine cables relations, extending international cooperation, and enhancing submarine cables security are proposed. The second set of changes involves institutional arrangements and argues to rethink the status of the ICPC in international law, to establish regional authorities responsible for submarine cables and to extend the cooperation of the ICPC with international organizations to reduce the fragmentation of the submarine cables legal regime.

I wish to express my sincere appreciation to my supervisors, Professor Angel Rodrigo Hernández and Professor Marta Abegón

Novella, who put extraordinary efforts in reviewing this work, providing with insightful comments and making the outcome of this research thorough from various perspectives. They kept up my spirit and constantly encouraged me using the metaphor of the light is in the end of a tunnel in relation to the thesis defense that could not have been possible without their expertise.

I would like to thank Professor Ana María Caballe Martorell, the dean of the faculty of law of the Universitat Pompeu Fabra, who provided me an opportunity to work as an adviser to the faculty team at Philip C. Jessup International Law Moot Court Competition as this experience greatly deepened my knowledge of public international law and contributed to the development of the thesis.

I wish to show my gratitude to Professor Dr. Alexander Proelss (Universität Hamburg); Professor Akiho Shibata (Kobe University) and Professor Tore Henriksen (UiT The Arctic University of Norway) for their guidance on different stages of the thesis development and concerning various law of the sea aspects of this work.

The financial support of the following academic institutions is truly appreciated: Arctic Centre (University of Lapland); Polar Cooperation Research Centre (Kobe University); Norwegian Centre for the Law of the Sea (UiT The Arctic University of Norway). Without their funding this research could not have been presented in international conferences and could not have received valuable feedback.

Last but not the least, I would like to thank my husband for supporting me throughout writing this thesis and my life in general.

FIRST SECTION

THE LEGAL NATURE OF THE INTERNATIONAL SUBMARINE CABLES REGIME

The first section is dedicated to the consideration of the legal nature of the international regime governing submarine cables as a multilateral object of regulation. Three chapters comprising it aim to respectively define the object of research, emphasize its distinguishing characteristics, and provide roots of its legal regulation.

In that regard, Chapter I defines what should be understood by a notion “submarine cable”, differentiating it from submarine pipelines. It compares definitions currently existing in various legal sources and justifies that none of them is suitable for the use in international law. Thus, a formulated definition of a submarine cable with clearly identified criteria is provided at the end of the chapter. Chapter II offers a comprehensive analysis of the variety of legal relations on the subject of submarine cables, explains submarine cables as a multilateral object of regulation and lists institutions involved in submarine cables governance. Finally, Chapter III examines origins and first attempts to regulate submarine cables in international law by the analysis of several conventions and their status in the modern international law.

CHAPTER I THE ABSENCE OF AN ACCEPTED DEFINITION OF A SUBMARINE CABLE IN INTERNATIONAL LAW

This chapter aims at examining the notion of a submarine cable and underlining cables’ distinctive features. It analyzes definitions provided by legal and non-legal sources existing nowadays and justifies that none of these definitions is suitable for the purpose of public international law. At the end of this chapter, a definition to be used in subsequent chapters of this thesis is provided.

A) DISTINGUISHING CHARACTERISTICS OF SUBMARINE CABLES

Submarine cables have specific characteristics making them unique object of regulation and requiring a comprehensive legal definition. Such characteristics include: two existing types of submarine cables and differences between submarine cables and pipelines.

1. Types of submarine cables

Submarine cable is a collective name relating either to telecommunications cables or power cables. Telecommunications cables are those which transmit signals of Internet, voice, and a variety of data, while power cables are used to manage electricity supply allowing to redistribute surpluses of electricity within one state or to transfer it to another1. Power cables are those cables which supply offshore wind farms, platforms, or other artificial installations at sea with electricity2. They are further divided into two types: cables of direct current (HVDC or High Voltage, Direct Current) designed for long distances and cables of alternating current (HVAC or High Voltage, Alternating Current) laid in the distance

1 T. Worzyk, Submarine Power Cables: Design, Installation, Repair, Environmental Aspects, Berlin Heidelberg: Springer Verlag, 2009, p. 3. 2 For more information about power and telecommunications cables see International Cable Protection Committee’s publications available at https://www.iscpc.org/publications/, last visited 01/09/2020. 19 normally not exceeding 80 kilometers3. Power cables are bigger in diameter than telecommunications cables, laid on shorter distances and have less transmission capacity. Telecommunications cables on the opposite are smaller and transmit phone calls, text messages, voice, and other data.

Telecommunications and power cables, apart from their initial functions, are also used for different activities such as marine scientific research, military aims or collection of data on the condition of the state of the marine environment. Some cables contain sensors sending data on the salinity, temperature, or any other characteristics of the water4. Sometimes cables are used for predicting tsunamis and other natural disasters5. For the purpose of this thesis, the general notion of “submarine cable” including all types of cables is used. Irrespective of the aim and its type, all cables are considered equally.

Along with that, legal regime analyzed in this thesis mostly relates to telecommunications cables as far as they are present in the higher amount, laid over longer distances and have international nature, usually going through maritime zones of several states and being much more significant for the global economy6. Submarine power cables, on the contrary, have local importance and are mostly used to transmit electricity from one part of the state to another. Examples of submarine power cables used for domestic purposes include the

3 M. Graham, L. Carter, D. Burnett, “About Submarine Power Cables”, International Cable Protection Committee materials, 2011, pp. 1-45, p. 8, available at www.iscpc.org, last visited 01/09/2020. 4 ITU/WMO/UNESCO/IOC, “The scientific and societal case for the integration of environmental sensors into new submarine telecommunication cables”, 2014, p. 24, available at http://www.itu.int/dms_pub/itu-t/opb/tut/T-TUT-ICT-2014-03- PDF-E.pdf, last visited 01/09/2020. 5 B. Howe, K. Panayotou, “Harnessing submarine cables to save lives”, The UNESCO Courier, e-ISSN 2220-2293, 2017, pp. 1-3, p. 2, available at https://en.unesco.org/courier/2017-october-december/harnessing-submarine- cables-save-lives, last visited 01/09/2020. 6 A. Simcock, “Submarine Cables and Pipelines”, in L. Innis, A. Simcock, The First Global Integrated Marine Assessment by the Group of Experts of the Regular Process, United Nations Global Reporting, World Ocean Assessment, 2016, pp. 1- 13, p. 6, available at http://www.un.org/depts/los/global_reporting/WOA_RPROC/Chapter_19.pdf, last visited 01/09/2020. 20 following: a cable between Italy and its island of Sicily, a cable linking Australia with its island of Tasmania, a cable between mainland Sweden and Gotland island, a cable connecting mainland of Canada to Vancouver island, et cetera7. This allows supplying islands with electricity and supporting local economies. Typically such power cables are laid within one state’s territorial sea or internal waters and regulated by domestic law. However, sometimes power cables are going through maritime spaces of two or more states. In this case, they are regulated by the norms of international law and addressed by the present thesis. There are such cables as, for instance, between Spain and Morocco, Netherlands and Norway (the longest power cable in the world), and between Sweden and the Danish island of Bornholm8.

2. Differences between submarine cables and pipelines

Almost all provisions of the United Nations Convention on the Law of the Sea (UNCLOS)9, the main source of the law of the sea, address submarine cables and submarine pipelines simultaneously. However, it was not always the case. Since cables appeared on the seabed earlier than pipelines, international law, in the beginning, addressed its provisions to cables only. For example, the International Law Commission’s (ILC) Draft Articles on the Law of the Sea of 1956 mentioned only submarine cables10. After pipelines had become to be present in a more considerable amount and along with cables appeared to require a legal regulation, international law started to treat them together, and further international law

7 A. Simcock, “Submarine Cables…”, op.cit., p. 8. 8 A. Simcock, “Submarine Cables…”, op.cit., p. 8. 9 UN Convention on the Law of the Sea, concluded 10 of December 1982, entered into force 16 of November 1994, 1833 UNTS 3; 21 ILM 1261 (1982). 10 Articles concerning the Law of the Sea, text adopted by the ILC at its eighth session in 1956, and submitted to the GA as a part of the Commission’s report covering the work of that session (paragraph 33). The report, which also contains commentaries on the draft articles, appears in the Yearbook of the ILC, 1956, vol. II. Article 70 says: “Subject to its right to take reasonable measures for the exploration of the continental shelf and the exploitation of its natural resources, the coastal State may not impede the laying or maintenance of submarine cables on the continental shelf”. 21 instruments such as Geneva Conventions of 195811 and correspondingly the UNCLOS in the majority of cases mention submarine cables and pipelines together.

Although it may seem that the definition of a submarine cable is clear, in practice, it does not appear to be so. From considering national legislation of some states as it is examined later in this thesis, it comes out that states sometimes apply identical legal regime for submarine cables and submarine pipelines without separating them12. However, the nature of these two artificial installations laid on the bottom of the oceans is diverse. Therefore, it is important to distinguish from the very beginning what are the principle distinctions between submarine cables and submarine pipelines and why they should not be subject to an equal legal regime. a. Environmentally friendly laying process of submarine cables

The first feature is that submarine cables are less harmful to the marine environment due to their smaller size rather than pipelines. There is a difference in the process of pipelines and cables installation on the seabed and further operations.

11 Geneva Convention on the Continental Shelf 1958, concluded 29 of April 1958, entered into force on 10 of June 1964, 15 UST 471; 499 UNTS 311 (Article 4), and Geneva Convention “On the High Seas”, concluded 29 of April 1958, entered into force on 30 of September 1962, UNTS, vol. 450, p. 11 (Article 2, 26) 12 For instance, Russian Federation requires conducting state ecological expertise in every case of laying submarine cable and pipeline. Article 27, paragraph 3 of the Federal Law On the Exclusive Economic Zone of the Russian Federation indicates that projects of laying and operation of submarine cables in the exclusive economic zone (as well as by the Federal Law On the continental shelf – on the continental shelf) are objects of state ecological expertise. Such expertise considerably complicates and impedes the process of obtaining permission for laying submarine cables in the above-mentioned maritime areas. The state ecological expertise of pipelines is reasonable since their potential impact on the marine environment is larger than the impact of submarine cables. However, the state ecological expertise might be simplified in the case of submarine cables. See Federal Law On the Exclusive Economic Zone of the Russian Federation, adopted 17.12.1998 N 191-FZ, first published in Collection of Legislation of the Russian Federation, December 21, 1998, No. 51, art. 6273, Rossiyskaya Gazeta, No. 244, December 24, 1998; Federal Law On the continental shelf, adopted 30.11.1995 N 187-FZ, first published in Collection of Legislation of the Russian Federation, 04.12.1995, N 49, art. 4694, Rossiyskaya Gazeta, N 237, 07.12.1995. 22

Cable laying process can be described as follows. Cable ship starts laying a cable on the shore going gradually from the coast far to the sea. Those parts of cables which are laid in shallow waters, close to the coast and where depth is lower than 1000 meters are always armored and buried (from 0,6 to 1,2 meters) to the seabed13. The aim of this additional protection is to avoid cable breaks, catches by anchors and other human activities. However, it does not always prevent such accidents and around 70% of all cable breaks occur close to the coast in depth up to 200 meters14. In areas with depths exceeding 1000 meters (in some cases 1500 meters) cables normally remain laying on the bottom without burial. To bury a submarine cable, special remotely operated vehicles (ROVs) are used. They are operating on the sea bottom leaving a trench where a cable is laid. Power submarine cables’ diameter is up to 300 mm depending on capacity and amount of armor protection. This size is bigger than of telecommunications cables. To compare these two types, installation of power cables causes more damage to the marine environment than the installation of telecommunications cables due to a greater size of power cables15.

Submarine oil/gas pipes can reach 1500 mm in diameter while submarine telecommunications cables are only 17-50 mm in diameter depending on armor16. Consequently, the size of trench and scale of disturbance caused to the marine environment in the process of cable laying is much smaller than in the process of laying pipelines. There is less noise, light, pollution, and harm for the ocean and its organisms.

13 S. Drew, A. Hopper, “Catch fish, not Cables! Fishing and submarine cables working together” (Second edition), International Cable Protection Committee publications, 2009, pp. 2-54, p. 15, available at https://www.google.ru/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&ved=0 CBwQFjAA&url=https%3A%2F%2Fwww.iscpc.org%2Fdocuments%2F%3Fid% 3D142&ei=ZHcUVbSqLIW6ygPLl4KQAQ&usg=AFQjCNGOhqoEHSSQffd08 MdN3w3dgHZh8Q&sig2=fQApyAUO7gPNJpEevuBmow&bvm=bv.89381419,d .bGQ&cad=rjt), last visited 23/10/2017, last visited 01/09/2020. 14 L. Carter, D. Burnett, S. Drew, G. Marle, L. Hagadorn, D. Bartlett-McNeil, and N. Irvine, “Submarine Cables and the Oceans – Connecting the World.” UNEP- WCMC Biodiversity Series No. 31, 2009. ICPC/UNEP/UNEP-WCMC, pp. 1-68, p. 39. 15 A. Simcock, “Submarine Cables and Pipelines…”, op.cit., p. 9. 16 M. Graham, L. Carter, D. Burnett, “About Submarine Power...”, op.cit., p. 8. 23 b. Quick integration into the marine environment

The second difference distinguishing cables from pipelines is that submarine cables faster integrate into the marine environment. Some investigations demonstrate that after approximately three months cables are almost wholly covered by marine microorganisms and can be considered as the part of the ocean floor17. They become invisible and cannot be found by the unaided eye. It is again possible due to the small size of cables. The only harm to living organisms that can be produced by cables is the warmth and electromagnetic field they allocate around themselves due to unceasing operation. This warmth attracts marine creatures, and some cases of shark attacks were reported with regard to this factor18. Sharks confused cable warmth with a warmth of other living organisms and made their efforts to catch them. However, after the development of cable isolation materials, these kinds of accidents do not occur nowadays. c. The impact on the marine environment after damage

A third and important difference from the environmental point of view is the consequences in the event of damage to these artificial installations. Submarine cables in case of a break cause almost no pollution to the environment which is entirely opposite to submarine pipelines carrying oil and gas. Oil spills and leaks rapidly pollute adjacent areas and are hardly eliminated. The UNCLOS distinguishes cables and pipelines in the question of pollution. Article 79 titled “Submarine cables and pipelines on the continental shelf” mentions cables and pipelines together. However, paragraph 2, unlike all other paragraphs, refers only to pipelines in connection with pollution:

“Subject to its right to take reasonable measures for the exploration of the continental shelf, the exploitation of its natural resources and the prevention, reduction and control of pollution from pipelines the coastal

17 I. Kogan, C. K. Paull, L. Kuhnz, E. J. Burton, S. Von Thun, H. G. Greene, J. P. Barry, “Environmental Impact of the ATOC/Pioneer Seamount Submarine Cable”, Monterey Bay Aquarium Research Institute publication, 2003, pp. 1-84, p. 18, available at https://nmsmontereybay.blob.core.windows.net/montereybay- prod/media/research/techreports/cablesurveynov2003.pdf, last visited 01/09/2020. 18 L. J. Marra, “Shark bite on the SL submarine light wave cable system: History, causes and resolution”, IEEE Journal Oceanic Engineering, vol. 14, 1989, pp. 230–237, p. 230. 24

State may not impede the laying or maintenance of such cables or pipelines”.

Consequently, the UNCLOS recognizes environmentally-friendly nature of submarine cables. Legal scholars also adhere to this idea19. However, some states being parties of the UNCLOS draw back from its provisions and establish excessive requirements regarding environmental nature of submarine cables20.

Along with that, some researchers argue that submarine cables activities can indirectly be involved in causing harm to the marine environment meaning that while laying or repairing operations of cables submarine pipelines could be damaged which can provoke oil spills. In particular, the idea expressed in such works is a broad interpretation allowing coastal states to establish in their national legislation measures foreseeing this situation21.

The difference between submarine cables and pipelines is significant. Despite this, many states establish equal legal regime to both of them when implementing provisions of the UNCLOS or drafting their own domestic laws. The unique international law definition of a submarine cable reflecting all its characteristics appears to be useful to facilitate the development of the legal regime of submarine cables independently from pipelines. In addition, it can be of use for a cable industry – a commercial sector of economics dealing with submarine cables. When formulating provisions of contracts between private parties regulating submarine cables the unique definition may facilitate the process of negotiations and in some cases, further disputes. On the basis of analogy with the maritime law (a branch regulating private international law issues connected to the sea) defining certain terms in its legal instruments, a similar approach may be utilized by the law of the sea regulating public international relations. Maritime law consists of the common rules, terms, and standards followed by the maritime industry. Some contracts are

19 Y. Van Logchem, “Submarine Telecommunications Cables in Disputed Maritime Areas”, Ocean Development and International Law, vol. 45, 2014, pp. 107-122, p. 110. 20 D. Burnett, R. Beckman, T. Davenport, Submarine Cables: The Handbook…, op. cit., p. 151. 21 Y. Takei, “Law and Policy for International Submarine Cables: An Asia-Pacific Perspective”, Asian Journal of International Law, vol. 2, 2012, pp. 205-204, p. 211. 25 absolutely standardized as well as forms of, for instance, bills of lading or charter parties. Maritime law conventions, as a rule, are specific and carefully determine all the terms used in the text22. A similar strategy is highly desirable in the case of submarine cables.

B) CURRENTLY EXISTING DEFINITIONS OF A SUBMARINE CABLE There is no accepted definition of a “submarine cable” existing in international law nowadays. The present sub-section is devoted to definitions of a “submarine cable” taken from several other sources: international law instruments, national legislation, general scientific definitions, non-scientific definitions, and legal academic definitions. Each definition is analyzed in two dimensions. First, main components contained in the definition and examined. Second, it is analyzed if the definition could serve for the purpose of international law.

1. Definitions included in international law instruments

Neither the UNCLOS defines submarine cables nor can the proper definition be found in other international agreements. However, it ought to be remarked that the United Nations (UN) General Assembly (GA) expressed its view on this issue, mentioning submarine cables as “critical communications infrastructure” extremely important to the economy and security of all nations23. Therefore, a term “submarine cable” is recognized as essential by the UN which highlights the need for an accepted legal definition in international law.

During the search for definitions in international law instruments, one version to define submarine cables was proposed by the ILC in

22 See UN Convention on Contracts for the International Carriage of Goods Wholly or Partly be Sea, concluded 11 of December 2008, not yet entered into force; 1924 International Convention For The Unification Of Certain Rules Of Law Relating To Bills Of Lading And Protocol Of Signature, concluded 25 of August 1924, entered into force on 2 of June 1931 (The Hague Rules), as amended by the Protocol of 23 February 1968 (Visby Rules). 23 GA Resolution A/RES/65/37, Oceans and the law of the sea, adopted 7 of December 2010, paragraph 121. 26 the Articles concerning the Law of the Sea with commentaries. According to it:

“The term “submarine cables” applies not only to telegraph and telephone cables, but also to high-voltage power cables”24.

Relatively short, it addresses cables as “submarine” meaning that terrestrial cables are not considered in this definition. It also specifies different types of cables. In modern terminology, it would be addressing both telecommunications and power cables. This definition counting for both types of submarine cables is useful. However, it was only a draft that never came into force.

The International Telecommunication Union (ITU), a specialized agency for information and communication technologies of the UN25, offers several definitions of a submarine cable used for different purposes:

“optical fibre submarine cable: The submarine cable using optical fibres as transmission line”26.

“repeatered submarine cable: An electrically powered underwater optical fibre cable, designed for repeatered applications, and suitable for shallow and deep water use, which has been extensively tested to show it can be installed and repaired in situ, even in the worst weather conditions, without any impairment of optical, electrical or mechanical performance or reliability”27.

“repeaterless submarine cable: An underwater optical fibre cable, designed for unrepeatered applications, and suitable for shallow and deep

24 ILC Articles concerning the Law of the Sea with commentaries, Yearbook of the International Law Commission, 1956, vol. II. Commentary to Article 27 “Freedom of the high seas”, p. 278. 25 For more information see the website of the ITU, available at https://www.itu.int/en/about/Pages/default.aspx, last visited: 01/09/2020. 26 International Telecommunication Union, ITU-T G.972, Telecommunication Standardization Sector Of ITU (11/2016), Series G: Transmission Systems And Media, Digital Systems And Networks Digital Sections And Digital Line System – Optical Fibre Submarine Cable Systems Definition Of Terms Relevant To Optical Fibre Submarine Cable Systems, Recommendation ITU-T G.972, paragraphs 1019, available at https://www.itu.int/rec/dologin_pub.asp?lang=e&id=T-REC-G.972- 200406-S!!PDF-E&type=items, last visited 01/09/2020. 27 Ibid, paragraph 1029. 27

water use, which has been extensively tested to show it can be installed and repaired in situ, even in the worst weather conditions, without any impairment of optical, electrical or mechanical performance or reliability”28.

“the optical submarine cable is an underwater optical fibre cable designed to be suitable for shallow and deep water use, which is required to ensure protection of optical fibres against water pressure, longitudinal water propagation, chemical aggression and the effect of hydrogen contamination throughout the cable design life”29.

Separately or taken all together, these definitions do not appear to address all criteria necessary for formulating a definition suitable for international law in full terms. Several times in the definitions it is mentioned that a cable is laid “underwater”, and that submarine cable is “suitable for shallow and deep water use” which excludes terrestrial cables from the scope of application. At the same time, only optical fibre cables are mentioned. They transmit signals of Internet, television, phone calls and other data but are not suitable for transmitting current. The wording “deep water use” can indirectly mean areas where cables are laid including high seas and other maritime areas far from states’ coasts. However, it is not always the case as deep water can also appear in internal waters of a coastal state. Thus, internationally established maritime areas where cables are laid and addressed by international law are not mentioned in these definitions.

2. Definitions contained in national legislation

There is a variety of legal systems in the world and each sovereign state has its own national legislation. Some of states possess legislation devoted to submarine cables. However, to find a basic definition of a submarine cable among the diversity of legal acts appears to be complicated. There are several limitations concerning the accessibility to definitions such as language restrictions, closed access to local normative acts, and different denominations of submarine cables.

28 Ibid, paragraph 1030. 29 International Telecommunication Union, ITU-T Manual CH-1211, Optical fibres, cables and systems, Switzerland, Geneva, 2009, paragraph 4.3, available at https://www.itu.int/dms_pub/itu-t/opb/hdb/T-HDB-OUT.10-2009-1-PDF- E.pdf, last visited 01/09/2020. 28

A language restriction is the first limit of accessibility. Not all domestic laws can be found in English. Even in those states where English is an official language, it is not always possible to find a proper law if it is not published on the website of a governmental body that issued this law. The situation becomes more complicated with the fact that not all the laws coming from non-English speaking states are translated into English. Most states of the world publish their laws in a local language. Although some states (such as Scandinavian) put efforts in translating their laws, in the majority of cases, national laws are inaccessible.

The second reason is the restricted access to available sources. Some legal systems are closed due to political regime. For instance, it is nearly impossible to find domestic laws of North Korea or Saudi Arabia even in the original language.

Finally, the third reason is different denominations. The variety of adjectives exists relating to cables. They are referred as submarine30, undersea31, subsea32, underwater33 or marine34 cables. In the legal context, it appears that the word “submarine” is preferred since the UNCLOS utilizes the wording “submarine cable”. Below are several examples appearing in domestic legal orders.

30 See provisions of the UNCLOS. 31 See L. L. Hantover, “The Cloud and the Deep Sea: How Cloud Storage Raises the Stakes for Undersea Cable Security and Liability”, Ocean and Coastal Law Journal, vol. 19, Issue 1, 2013, pp. 1-28, p. 3; E. Kingsley, “Submarine Cables and the Marine Environmental: Enhancing Sustainable and Harmonious Interactions”, China Oceans Law Review, vol. 2016, Issue 1, 2016, pp. 129-186, p. 174. 32 See A. Harvie, M. Hughes, “Recent Regulatory and Legislative Developments of Interest to Oil and Gas Lawyers”, Alberta Law Review, vol. 43, Issue 1, 2005, pp. 183-228, p. 196. 33 See R. Macnab, “Nationalizing the Arctic Maritime Commons: UNCLOS Article 76 and the Polar Sea”, Yearbook of Polar Law, vol. 2, 2010, pp. 171-188, p. 172; Law on Exclusive Economic Zone, International Legal Materials, vol. 15, Issue 2, 1976, pp. 382-384, 15 I.L.M. 382 (1976), p. 383. 34 P. Gaeta, “Anthology: Donnedieu de Vabres on Universal Jurisdiction: Introductory Note”, Journal of International Criminal Justice, vol. 9, Issue 4, 2011, pp. 905-906, p. 905. 29 a. Oman

The Draft Regulation on Submarine Cables of the Sultanate of Oman in chapter II defines submarine cable as:

“Submarine Cable (maritime cable) is a cable laid on the sea bed between land based stations to carry telecommunication signals across stretches of ocean, and includes any device attached to that part of the line link, if the device is used in or in connection with the line link”35.

This definition covers cables laid underwater. At the same time, it mentions only cables which “carry telecommunication signals”. This capacity is attributed to telecommunications cables meaning that power cables are not considered. There is also no mention of international maritime areas where submarine cables are laid which does not provide a certainty whether this definition should apply only to domestic cable projects or to international submarine cables as well. b. New Zealand

New Zealand Submarine Cables and Pipelines Protection Act provides with an alternative definition:

“submarine cable means a cable that lies beneath the high seas or the territorial sea of New Zealand or the internal waters of New Zealand”36.

According to the wording given in the Act, submarine cable is a cable that lies beneath the high seas or the territorial sea of New Zealand or the internal waters of New Zealand. This notion specifies that this Act gives protection to submarine cables in different maritime zones, not only within internal waters and territorial sea but also beneath the high seas considered as a maritime zone not under

35 The Draft Regulation on Submarine Cables, Telecommunications Regulatory Authority of Oman, 2015, available at https://tra.gov.om/pdf/submarine- cables%20public-regulation-En.pdf, last visited 01/09/2020. 36 Submarine Cables and Pipelines Protection, Act No. 22, New Zealand, 1996, adopted 16 of May 1996, Ministry of Transport, section 2 “Interpretation”, available on the website of the Parliamentary Counsel Office of New Zealand, at http://www.legislation.govt.nz/act/public/1996/0022/latest/DLM375803.html, last visited 01/09/2020. 30 state’s control. It is open for all, even for land-locked states, and reserved for peaceful purposes.

The Act continues with the definition:

“cable includes works within the meaning of section 2 of the Electricity Act 1992 and a line within the meaning of section 5 of the Telecommunications Act 2001”37.

In continuation of this definition, section 2 of the Electricity Act38 was repealed and is not in force anymore. Section 5 of the Telecommunication Act provides with the following:

“line (a) means a wire or a conductor of any other kind (including a fibre optic cable) used or intended to be used for the transmission or reception of signs, signals, impulses, writing, images, sounds, instruction, information, or intelligence of any nature by means of any electromagnetic system; and (b) includes (i) any pole, insulator, casing, fixture, tunnel, or other equipment or material used or intended to be used for supporting, enclosing, surrounding, or protecting any of those wires or conductors; and (ii) any part of a line”39.

This definition, more technical than legal, does not specify that a cable shall be laid on the seabed directly. It is possible to conclude so only from the title of the Act (“Submarine Cables and Pipelines Protection Act”) where the word “submarine” says for itself. In the paragraph (a) “a wire or a conductor of any other kind (including a fibre optic cable)” is mentioned which gives grounds to suppose that all types of cables are addressed by this definition. It also mentions internationally established maritime zones such as internal waters,

37 Ibid, section 2 “Interpretation”. 38 Electricity Act 1992, Public Act No.122, 1992, adopted 17 of December 1992, Ministry of Business, Innovation, and Employment, available on the website of the Parliamentary Counsel Office of New Zealand at http://www.legislation.govt.nz/act/public/1992/0122/119.0/whole.html#DLM2 81866, last visited 01/09/2020. 39 Telecommunications Act 2001, Public Act No.103, adopted 19 of December 2001, Ministry of Business, Innovation, and Employment, available on the website of the Parliamentary Counsel Office of New Zealand at http://www.legislation.govt.nz/act/public/2001/0103/latest/whole.html#DLM1 24974, last visited 01/09/2020. 31 high seas, and territorial sea where submarine cables are laid. However, other maritime zones such as exclusive economic zone and the continental shelf are missing. Generally, this definition is sufficiently detailed but covers more technical than legal characteristics. c. Australia

The Australian Telecommunications Act provides with a comparatively short submarine cable definition:

“submarine cable means: (a) a domestic submarine cable; or (b) an international submarine cable”40.

Definitions of domestic submarine cable and international submarine cable are further provided following the amendment of the Act as follows:

“Domestic submarine cable: <…> means that part of a line link (within the meaning of section 30): (a) that is laid on or beneath the seabed that lies beneath Australian waters; and (b) that is laid for purposes that include connecting a place in Australia with another place in Australia (whether or not the cable is laid via a place outside Australia); and (c) that is connected to a place in Australia; and includes any device attached to that part of the line link, if the device is used in or in connection with the line link, but does not include an international submarine cable. Note 1: Any part of a line link that is laid elsewhere than on or beneath the Australian seabed, and any device attached to such part of a line link, is not a domestic submarine cable for the purposes of this Schedule”.

International submarine cable: <…> means that part of a line link (within the meaning of section 30): (a) that is laid on or beneath the seabed that lies beneath Australian waters; and (b) that is laid for purposes that include connecting a place in Australia with a place outside Australia (whether or not the cable is laid via another place in Australia); and

40 Telecommunications Act 1997 No.47, Legislation Register, Schedule 3A, section 2, available on the website of the Australian Government at https://www.legislation.gov.au/Details/C2017C00179, last visited 01/09/2020. 32

(c) that is connected to a place in Australia; and includes any device attached to that part of the line link, if the device is used in or in connection with the line link”41.

This definition tends to be one of the most successful in domestic legal orders. It is detailed but at the same time does not address different types of submarine cables. In its text and from the title of the Act (“Telecommunications Act”) it can be concluded that it applies to telecommunications cables only, leaving power cables out of the scope. It is of importance to note that the Act provides with two definitions of a submarine cable among which the definition of an international submarine cable is more suitable for the international legal regulation of submarine cables. It specifies that cables should be laid “beneath the seabed” so that to exclude terrestrial cables laid underground, and “beneath Australian waters” which means in international maritime areas. An interesting aspect to mention here is that the wording of an international submarine cable says that the international submarine cable is “connecting a place in Australia with a place outside Australia” which highlights the transborder nature of international submarine cables. d. China

Chinese Regulations of Permission on Delineation of Course for Laying, Maintaining, or Modifying Submarine Cables or Pipelines on the Continental Shelf of the Republic of China provide with the following definition of a cable:

“cable” means cable lines and affiliated devices used for communication, electricity, or other transmitting purposes”42.

41 Telecommunications Legislation Amendment (Submarine Cable Protection) Act No.33, 2014, An Act to amend legislation relating to telecommunications, and for other purposes, available on the website of the Australian Government at https://www.legislation.gov.au/Details/C2014A00033, last visited 01/09/2020. 42 Regulations of Permission on Delineation of Course for Laying, Maintaining, or Modifying Submarine Cables or Pipelines on the Continental Shelf of the Republic of China, Tai 89 Nei Tzu No. 02361, adopted 26 January 2000, Executive Yuan of the Republic of China (Taiwan), Article 3, available at https://english.ey.gov.tw/News_Content.aspx?n=3FA02B129BCA256C&sms=92 5E4E62B451AB83&s=FE5BD0066AFE28EC, last visited 01/09/2020. 33

The definition does not mention expressly that a cable should be laid underwater. However, it is implied from the title of the Regulations addressing submarine cables. It indicates both types of submarine cables by specifying communication and electricity among purposes for cable use but fails to address that a cable on the continental shelf shall be laid in accordance with international law. Thus, this definition is also considered as incomprehensive. e. United States

The United States does not have a unique definition of submarine cable in the federal legislation. The title 47 of the United States Code, Chapter 2 dedicated to submarine cables even has a paragraph “definitions” but the definition of a submarine cable does not appear there unlike definitions of a “vessel”, “master” or “convention”. Therefore, definitions of a submarine cable may be included in the legislation of states, although it is not obligatory.

One of the examples of state legislation would be the Administrative Code of New Jersey containing the following definition of a submarine cable:

“(a) Submerged cables (cables) are underwater telecommunication cables, and shall include all associated structures in the water such as repeaters.”43

In case of this definition, unaccustomed word “submerged” is used. By utilizing it the underwater nature of a cable is underlined. However, only telecommunications cables constitute a part of the definition leaving power cables unattended. The supporting infrastructure such as repeaters is mentioned here but it is not that important for the purposes of international law.

Despite the variety of wordings and different options proposed by national legislations no definition of those mentioned above addresses the need to use one and unique definition suitable for the international legal regime of submarine cables to be used in

43 New Jersey Administrative Code 7:7, Coastal Zone Management Rules, Statutory authority: N.J.S.A. 13:19-1 et seq.; 12:3-1 et seq., 12:5-3; 13:9A-1 et seq., section 7:7-12.21 “Submerged cables”, available at http://www.nj.gov/dep/rules/rules/njac7_7.pdf, last visited 01/09/2020. 34 international law. Hence, other sources defining a submarine cable are examined below.

3. General science definitions

In circumstances of the absence of a legal definition in public international law instruments and lack of adequate definition in the national legislation of states, definitions used in other fields of science could also be considered. This sub-section deals with definitions taken from the authoritative science dictionaries and encyclopedias having large collections of data and suitable for research purposes.

The Science Dictionary defines a submarine cable as a

“Long-distance cable laid along the sea bed. Coaxial in form, with submarine repeaters at intervals to amplify signals. In shallow water, with a danger from anchors or trawling, the cables may be armoured or even buried in the sea bed. In deep water, lightweight cables without armouring but with a central core of high- tensile steel are used to prevent stretch during laying. Some may contain optical fibre channels”44.

The disadvantage of this definition is that submarine cables are not necessarily laid on long distances. As it was mentioned before, a cable may connect two different states and be subject to international law regulation, but the distance between these two states may be relatively short. The definition highlights “cable laid along the sea bed” which excludes terrestrial cables from the scope of the definition. No type of cable is mentioned by this definition which gives grounds to conclude that this definition can cover any cable type. However, it is not clear where the cable is laid, in domestic waters or internationally established maritime areas since no international maritime spaces are mentioned.

Encyclopedia Britanica provides the following definition:

“Undersea cable, also called Marine Cable, assembly of conductors enclosed by an insulating sheath and laid on the ocean floor for the transmission of messages. Undersea cables for

44 Science Dictionary, Free Online Science Dictionary, definition of a “submarine cable”, 2017, available at http://thesciencedictionary.org/submarine-cable/, last visited 01/09/2020. 35

transmitting telegraph signals antedated the invention of the telephone; the first undersea telegraph cable was laid in 1850 between England and France”45.

This definition is a mixture of a technical and historical one. It starts with the information about what submarine cables are made of and concludes with a historical perspective. In the middle, it points out that submarine cables are laid on the ocean floor which means underwater, but it only focuses on the transmission of messages referring to telecommunications cables ignoring the fact that submarine cables are also used for power supply. As well as in previous definitions no internationally established maritime zones are mentioned. Therefore, this definition is also incomplete.

An authoritative Great Soviet Encyclopedia provides with a definition of a submarine communication cable defining it as:

a “long-distance cable, laid on the bottom of the seas and oceans at depths up to several thousand meters”46.

This definition is one-sided and reflects only the fact that a cable shall be laid underwater. No reference is made to the type of cables or to the maritime zones where cables are laid.

The Oxford dictionary defines a “cable” as follows:

“an insulated wire or wires having a protective casing and used for transmitting electricity or communications signals”47.

The definition is informative itself, but it does not specify that a cable should be laid underwater, on the seabed. As well as it does not mention any maritime area established in international law.

45 Encyclopedia Britannica, definition of “undersea cable (communications)”, available at https://www.britannica.com/technology/undersea-cable, last visited 01/09/2020. 46 The Great Soviet Encyclopedia (Большая советская энциклопедия), in Russian, definition of “submarine cable”, available at https://bse.slovaronline.com/30434-PODVODNYY_KABEL_SVYAZI (in Russian), last visited 01/09/2020. 47 A. Stevenson, (ed.), Oxford dictionary of English, 3rd edition, New York: Oxford University Press, 2010, 234, definition of a “cable”. 36

For these reasons it appears that in general scientific literature it is also difficult to find a proper definition of a “submarine cable” which may apply in a legal context.

4. Non-scientific definitions

There are some non-scientific definitions of submarine cables offered by popular-science sources. They propose separate definitions for telecommunications and power cables. For instance, submarine telecommunications cable in a Free Encyclopedia is defined as follows:

“A submarine communications cable is a cable laid on the sea bed between land-based stations to carry telecommunication signals across stretches of ocean. The first submarine communications cables, laid in the 1850s, carried telegraphy traffic. Subsequent generations of cables carried telephone traffic, then data communications traffic. Modern cables use optical fiber technology to carry digital data, which includes telephone, Internet and private data traffic”48.

A Free Encyclopedia also provides a definition of a power cable:

“A submarine power cable is a major transmission cable for carrying electric power below the surface of the water. These are called "submarine" because they usually carry electric power beneath salt water (arms of the ocean, seas, straits, et cetera) but it is also possible to use submarine power cables beneath fresh water (large lakes and rivers). Examples of the latter exist that connect the mainland with large islands in the St. Lawrence River”49.

Although such definitions from popular-science sources are not fully reliable and cannot be used in an academic environment, there are some elements which are well formulated and can be used for scientific purposes. Therefore, a separation of definitions of telecommunications and power cables is worth to note since it allows highlighting features of both types of cables without mixing them up.

48 Wikipedia contributors, “Submarine communications cable”, Wikipedia, The Free Encyclopedia, 27 of April 2018, available at https://en.wikipedia.org/wiki/Submarine_communications_cable, last visited 01/09/2020. 49 Wikipedia contributors, “Submarine power cable”, Wikipedia, The Free Encyclopedia, 27 of March 2018, available at https://en.wikipedia.org/wiki/Submarine_power_cable, last visited 01/09/2020. 37

Following the idea provided by the Australian legislation as it was specified earlier in this section, it one more time confirms and supports the importance of accurately defining an object of a legal regulation. Both definitions address the underwater location of submarine cables, both types of cables are mentioned. However, international maritime spaces are not specified which contributes to an insufficiency of this definition.

5. Legal academic definitions

The legal academic society also tried to define a notion of a submarine cable. Some examples are provided below.

The Encyclopedia of Public International Law defines submarine cable as a “means of communication laid on the sea-bed between two terminal points”50.

In this definition, an accent is made on means of communication corresponding to telecommunications cables while submarine power cables are left unattended. It is clear that submarine cables are laid underwater but the wording “between two terminal points” does not make it clear whether cables are laid in international maritime zones or within internal waters of states not under regulation of the law of the sea.

Deserves an attention a definition elaborated by George K. Walker in his book Definitions for the law of the sea: terms not defined by the 1982 Convention. According to his view, a submarine cable is:

“an insulated, waterproof wire or bundle of wires or fiber optics for carrying an electric current or a message under water”51.

This definition underlines that cables are “waterproof” which implies that cables are laid underwater. Not entirely clear (because terrestrial cables can also be waterproof for eliminating the possibility to be damaged by, for instance, groundwater) but the word “underwater”

50 R. Lagoni, “Cables, Submarine”, in: R. Berhnardt (ed), Encyclopedia of Public International Law, Max Planck Institute for Comparative Public Law and International Law, vol. I, 1992, pp. 516-519, p. 516. 51 G. K. Walker, Definitions for the law of the sea: terms not defined by the 1982 Convention, Leiden: Martinus Nijof Publishers, 2012, p. 310. 38 might be considered that cables should be laid on the seabed. Power cables which transmit electricity are covered in this definition by the words “electric current”. However, telecommunications cables are addressed only by mentioning the word “message”. What kind of message is it and whether this definition covers all the telecommunications cables is not entirely clear. Since the title of the book states that there are definitions of the terms contained in the UNCLOS, it is implied that cables should be laid in internationally established maritime zones. This definition is one of the closest to address the need for defining a submarine cable in international law.

C) TENTATIVE DEFINITION OF AN INTERNATIONAL SUBMARINE CABLE AND ITS CRITERIA

As it follows from the analysis of existing definitions, none of those provided above is suitable for defining submarine cable for the use in international law and more concretely, in the law of the sea. After their examination, it appears that they do not correspond to the definition of a submarine cable to be used in legal context. Some of them reflect certain characteristics of a legal definition, but no definition collects all of them together. Since no appropriate definition exists, for the purpose of this thesis the following definition is proposed in accordance with criteria developed by the author to be suitable for use in international law:

International submarine cable is an underwater cable, irrespective of its type, designed for service on the seabed, laid in established maritime areas in accordance with international law with the purpose of transmitting electric current and telecommunications signals.

The following criteria are used in the definition:

1. Submarine cable is laid underwater

The main criterion to be considered from the legal point of view is that submarine cables are laid underwater. There is a necessity to differentiate them from land-based (terrestrial) cables which are not covered by the UNCLOS. Even though some projects can include both segments when a submarine cable lands at a certain point and then signals are transmitted via terrestrial cables, these cases are not

39 in the scope of the UNCLOS and would be subject to national legislation of a state where such cables are placed. Consequently, the UNCLOS addresses only cables laid on the bottom of the sea.

2. Submarine cable includes telecommunications and power cables

Any type of submarine cables should be covered by a legal definition provided that international law gives protection to both telecommunications and power cables laid on the seabed. Some definitions examined above concern only one of these types while from the legal point of view both types of cables are equal. Submarine cable projects implemented under international law may include all types of cables as well as cables of all length, characteristics, and geography suitable for the service on the seabed.

3. Submarine cable is laid in accordance with international law and in one of the maritime zones established by it

To be covered by the UNCLOS submarine cables shall be laid in accordance with international law and in one of the internationally recognized maritime areas established under the convention. These areas include territorial sea, archipelagic waters, contiguous zone, exclusive economic zone, continental shelf, high seas, and international seabed area. Those cables laid in internal waters, on the bottom of rivers or lakes on the territory of a single state are not covered by the international legal regime of submarine cables. Along with cables located within only one maritime area of one state established under the UNCLOS. An example would be the North West Cable System laid between Darwin and Port Hedland both located in Australia. This cable goes through the Australian exclusive economic zone without entering any other states’ maritime zones. This cable is subject to the national law of Australia which, however, should be in compliance with the provisions of the UNCLOS regarding, for example, competitive uses of the seabed or rights of other coastal states.

The absence of a proper definition of a submarine cable gives an opportunity to evaluate the legal nature of cables in more detail. This nature must be reflected in a definition of a submarine cable suitable for international law. The author’s definition, as it was attempted to be formulated, appears to be compatible with a multi-level structure

40 of legal relations concerning submarine cables involving a hybrid nature (including public and private sector regulation), and involvement of various subjects and interests around submarine cables as it is further discussed in the next chapter. Therefore, the formulated definition of the international submarine cable serves as a starting point for further research in the scope of this thesis.

CHAPTER II THE INTERNATIONAL LEGAL REGIME OF SUBMARINE CABLES AS A HYBRID REGIME

Submarine cables as an object of legal regulation constitute an interesting and wide area of research. Before examining the legal regime itself, in concrete, legal provisions established under the UNCLOS and other international agreements as provided in chapters IV, V and VI, it is worth to distinguish features of public relations characterizing cable-related activities.

Public relations are those relations appearing between individuals, institutions, and governments in the process of their activities. These relations are found in the framework of legal norms. Rights and obligations emerging between subjects of such relations are covered by law and called legal relations. These two notions are inextricably linked, and it is necessary to examine what are the legal relations regarding submarine cables and which subjects are involved herein.

This chapter is devoted to the nature and diversity of legal relations on the subject of submarine cables. The legal regime of submarine cables can be characterized as a hybrid regime meaning a mixed regime, the one containing several levels and including the variety of features. In particular, a diversity of maritime spaces where submarine cables are laid, involvement of numerous actors including non-state actors, and the presence of several levels of applicable law. This chapter also examines submarine cables as a multi-faceted object of regulation. It analyses the plurality of interests relating to submarine cables, considers submarine cables as an essential infrastructure and enters into discussion about submarine cables as a global public interest. Finally, it concludes with institutions and international organizations involved in the governance of submarine cables.

A) THE VARIETY OF RELATIONS ON THE SUBJECT OF SUBMARINE CABLES

1. Diversity of maritime spaces

Submarine cables are laid in different maritime spaces which stipulates for a variety of relations arising from cable activities. Among them are domestic maritime spaces and international ones.

Submarine cables are designed to start and land with terrestrial cable stations located onshore and they obligatory come to the territory of one or more state. More precisely, first to state’s territorial sea, then to internal waters, and finally to the land territory itself (areas under coastal states jurisdiction). Therefore, relations arising on the subject of submarine cables definitely have a national component where domestic subjects are involved. That is expressed by applying for cable laying permissions, complying with domestic laws, communicating with state authorities on the matter of cable laying, et cetera.

At the same time, offshore cables continue to be laid in international maritime spaces, such as contiguous zone, continental shelf, exclusive economic zone, high seas (areas beyond coastal states jurisdiction) where they come into contact with other users of the World Ocean. For instance, with foreign vessels and warships, scientific vessels and all other subjects operating in international maritime spaces. In this case, public relations are developed around competitive uses of the seabed, compliance with international law and common use of the oceans reserved for peaceful purposes.

What makes this matter even more complex is that one submarine cable could connect not only two, but several states which means that national component is multiplied by the number of such states. This “mixture” of domestic and international maritime spaces and consequently the diversity of applicable legal norms constitutes a set of rules faced by every international submarine cable project.

2. Diversity of actors

Submarine cables activities are characterized by the complex system of involved parties. It is a mixture of public and private relations where states and private companies are involved in the process. For successful implementation of a submarine cable project, the participation of both is required. a. States

States are the primary actors addressed by international law in the field of submarine cables. They can be divided into three groups based on the role they play during the development of a particular submarine cable project.

The first group of states includes states to which the UNCLOS grants the right to lay submarine cables in other states maritime zones1. They could be coastal states, archipelagic states, or landlocked states. The right to lay submarine cables does not depend on a geographical location. The UNCLOS gives two fundamental rights to states intended to lay a submarine cable. The first is to use the freedom to lay a cable and the second, correspondingly, is to respect already existing cables and rights of a receiving party.

The second group is represented by states in which maritime zones submarine cable is intended to be laid. In other words, a group of states receiving cables in their maritime areas. Their main rights under the UNCLOS are not to cause unjustified obstacles to states intending to lay a submarine cable. At the same time, such states may take reasonable measures to defend their own interests2. These states can have a landing point of a submarine cable on its coast connected to the global submarine cable network directly, or they may provide a land territory through which a cable will be laid further. Although terrestrial parts are not under the regulation of the UNCLOS, they sometimes constitute an inherent part of the whole cable project.

1 See the UNCLOS, Article 79, paragraph 1. 2 See the UNCLOS, Article 79, paragraph 2. 45

Therefore, interests of states participating in such project are also considered3.

The third and last group of states which can participate in a process of laying a cable is states considered as third parties. Rights of third states should be respected by a first group of states when laying a new cable. A second group should also respect the rights of third states on submarine cables laid before a state from the second group received the right to a certain maritime area4. A detailed analysis of the rights of states with regard to submarine cables is provided in chapters IV-VI of the present thesis.

Submarine cables activity involves interests of coastal states and also concerns all other states interested in laying submarine cables. Therefore, there is a possibility of potential conflicts between various interests. Regarding certain questions the UNCLOS contains specific rules how to resolve such conflicts but it remains silent in relation to submarine cables. The only principle which brings the clearness to this issue is that all states shall have “due regard” to the interests of other states5. However, it is an extremely broad notion which among others may depend on political and diplomatic relations among states. Especially in situations with competing oil and gas industry where states tend to favor the latter6.

This situation appears to be more complicated due to participation of private sector involved in submarine cables activities. Provisions of the UNCLOS mostly mention states as subjects having the right to lay submarine cables except for Articles 114 and 115 where “owners” of submarine cables are mentioned. b. Companies

There are two main distinguishing characteristics of companies taking part in submarine cable processes. The first is the variety of

3 L. Main, “The global information infrastructure: empowerment or imperialism?”, Third World Quarterly, vol. 22, No 1, 2001, pp. 83-97, p. 89. 4 See the UNCLOS, Article 79, paragraph 5 and Article 51, paragraph 2. 5 R.R. Churchill, A.V. Lowe, The law of the sea, 3rd edition, Manchester: Juris Publishing, 1999, p. 175. 6 Y. Van Logchem, “Submarine Telecommunications Cables…”, op.cit., p. 109. 46 their profiles and the second is a different legal status. These two characteristics are examined in detail in this part.

1) Legal nature

Submarine cables are laid by companies having diverse features relating to their legal nature. There are publicly owned companies, privately owned companies, or companies of a mixed nature. i. Publicly owned companies

Some companies involved in submarine cables issues appear to be public companies with a wide state participation. States participate as ordinary shareholders or own a controlling stake in such companies. For instance, China Unicom (full company’s legal name is “United Network Communications Group Co., Ltd”) is, a Chinese state- owned telecommunications operator in the People's Republic of China. TeleYemen is 100% wholly state-owned entity: 75% is owned by Public Telecommunication Corporation and 25% is owned by Yemen Post and Postal Savings Corporation7. In Norway, all telecommunications companies are privately owned, but the Norwegian Government is the main shareholder (holding over 50% of shares) in the biggest telecommunications operator (Telenor ASA)8.

In general, public profile of submarine cables companies is not a common situation. These examples rather demonstrate exceptions confirming the general rule that mainly submarine cables are laid and maintained by private cable companies without the participation of states9.

7 See the official website of TeleYemen, section “About us”, available at http://www.ty.com.ye/en/about-teleyemen/about-us-group-b/about-us.html, last visited 01/09/2020. 8 H. Opperud, “Telecommunications Regulation Norway”, Advokatfirmaet Thommessen AS, Lex Mundi publication, 2010, available at http://www.lexmundi.com/Document.asp?DocID=1871, last visited 01/09/2020. 9 D. Burnett, “Impacts on international submarine cables…”, op.cit., p. 160. 47 ii. Privately owned companies

Usually cable companies acting as an independent party with its own legal personality are private companies or consortiums of private companies.

For instance, a cable “Asia Africa Europe-1 (AAE-1)”, one of the largest cable systems nowadays, connecting Asia with Europe and linking such states as France, Italy, Egypt, Yemen, United Arab Emirates, Qatar, Pakistan, India, Malaysia, and some others, is owned by several companies. Among them are Telecom Egypt, Etisalat, Omantel, Djibouti Telecom, OTEGLOBE, Pakistan Telecommunications Company Ltd., PCCW, Ooredoo, Mobily, Viettel Corporation, Chuan Wei, Retelit, Reliance Jio Infocom, and some other10. These companies are owned by private shareholders and are independent legal entities. iii. Companies of mixed nature

Some companies include the participation of states, but states do not constitute the majority of shareholders. Therefore, decisions of such companies remain to be decisions taken by private companies although might be influenced by states as by any other shareholder.

For example, the Russian biggest telecommunications carrier Rostelecom is organized as a public joint stock company. In its authorized capital, the main shareholder is the Federal Agency for State Property Management (Rosimushchestvo) acting on behalf of the Russian Federation which holds 35,91% of the Rostelecom’s common shares11. Despite being a major shareholder, it does not hold a controlling stake, which means that other shareholders holding 64,09 % of shares can block its decision all together. At the same time, in this case state presence is visible and can influence decisions made by the company. Other examples would be Asia- America Gateway (AAG) Cable System which is partly owned by

10 See Submarine Cable Map…, op.cit. 11 As of 01/09/2020, information in Russian on the official Rostelecom website, available at https://www.rostelecom.ru/ir/stock_and_bonds/structure/, last visited 01/09/2020. 48

Communications Authority of Thailand12 and a cable Kuwait-Iran half owned by Kuwait Ministry of Communications13.

Although these companies are partly state-owned enterprises, states do not participate in their activity directly but through acquiring their shares. Some decisions can be pro-state influenced but generally these companies act on behalf of themselves as companies and not on behalf of states. Usually companies of a mixed nature act in accordance with market conditions without being influenced by governments of states.

2) Corporate profile

The corporate profile of companies in cable industry and their interests in relation to submarine cables is a matter to examine. Submarine cables are laid by telecom carriers or consortiums of several telecom carriers and respectively owned by them. Telecom carriers are companies registered under the laws of different jurisdictions around the world, and they can exist in the form of any legal entity in their respective jurisdiction, such as limited liability company, partnership, corporation, et cetera. In addition to it, they could be subsidiaries of bigger telecommunications operators14 or other companies by being included in the corporate group15. i. Legal forms

Companies involved in submarine cables activities are organized and exist under domestic jurisdictions in various forms. For instance, one of the biggest telecommunications companies Vodafone is organized as a Public Company Limited by Shares and is headquartered in the

12 According to the data of Submarine Cable Map, op.cit. 13 According to the data of Submarine Cable Map, op.cit. 14 For instance, Orange Romania is a subsidiary of Orange SA – a parent company registered in France (See the list of all Orange SA’s consolidated entities, available at https://www.orange.com/en/content/download/22742/471975/versio, last visited 01/09/2020). 15 For instance, a company Telemar Scandinavia AB is the part of the international Telemar Group. The Group's activities include companies in Italy, U.K, U.S.A, Caribbean, China, Singapore, Hong Kong, Germany, Finland, Norway, and Sweden. See Telemar Scandinavia AB website, available at http://www.telemar.se/company-profile, last visited 01/09/2020. 49

United Kingdom16. It owns an Apollo submarine cable system consisting of two cables (Apollo South and Apollo North) connecting Europe with North America17. A big telecom carrier Orange, despite actively doing its business in Spain and Africa, is a French public limited company (Société Anonyme, S.A.) headquartered in Paris18. This type of companies is a corporation mostly governed by domestic civil law19. It has a subsidiary Orange Marine whose primary activity is laying and maintenance of submarine cables around the world, and it is the owner of several submarine cables. Orange Marine is organized in the form of Société par Actions Simplifiée (SAS)20 to be translated into English as a “simplified joint-stock company”. Under French law, it is a hybrid entity based on common law. In addition, some cables are owned by Orange subsidiary branches. For instance, Orange Polska SA partly owns one of the largest submarine cables in the world, cable SeaMeWe 3, Orange Cameroun owns a part of Africa Coast to Europe (ACE) submarine cable jointly with Orange Mali, Orange Niger branches and other companies constituting a consortium21. Therefore, irrespective of its form, any legal entity registered in any jurisdiction can own a submarine cable.

ii. Amount of entities

16 See Articles of Association of Vodafone Group Public Limited Company, available at http://www.vodafone.com/content/dam/group/investors/downloads/governan ce/post-verizon-articles-020215.pdf, last visited 01/09/2020. 17 Information from the official website of Vodafone company, available at http://www.vodafone.com/business/carrier-services/apollo-submarine-cable- 2016-05-05, last visited 01/09/2020. 18 See the official website of Orange, section “Governance”/ “Governance documentation”, available at https://www.orange.com/en/home, last visited 01/09/2020. 19 S. Nicholas Woodward, “Business Organization”, Encyclopedia Britannica, Inc., published 12.02.2014, available at https://www.britannica.com/topic/business- organization, last visited 01/09/2020. 20 See the official website of Orange Marine company, section “Legal matters”, available at http://marine.orange.com/en/Bas-du-footer/Legal-matters2, last visited 01/09/2020. 21 According to data of Submarine Cable Map, op.cit. 50

One of the interesting features of cable companies’ corporate profile is the quantity of legal entities involved in one cable ownership. Some cables can be managed by several companies while others are owned by the sole shareholder. For instance, the cable SeaMeWe 3, one of the longest cables in the world, is managed by 19 companies under the maintenance agreement signed in 201022. On the contrary, a long 17,800 kilometers cable line America Movil Submarine Cable System-1 (AMX-1) connecting the United States, Brazil, Guatemala, Colombia, and several other states is owned by only one company América Móvil23. iii. Main profiles of companies

Not only telecommunications companies directly engaged in providing communications services (although, they constitute the majority) own submarine cables. There are various profiles of companies involved in the process. Currently, companies whose primary area of work does not include communications services but that highly rely on them in their daily activities, become owners of submarine cables as well. For instance, such content providers as Facebook, Microsoft, Telxius jointly own submarine cable MAREA connecting Spain with the United States24. Google is one of the owners of FASTER submarine cable25. Facebook and Amazon along with other companies are owners of JUPITER submarine cable connecting the United States with Japan and Philippines26.

Other examples include companies whose profile is not directly related to telecommunications, but they own submarine cables as one of the directions of their business. For instance, a submarine cable ARBR connecting Brazil with Argentina is owned by Werthein Group company having several other businesses not even related to the sea (agribusiness, mass consumption, energy, insurance, et cetera)

22 Ibid. 23 Submarine Cable Map, op.cit. 24 Submarine Cable Map, op.cit. 25 Submarine Cable Map, op.cit. 26 Submarine Cable Map, op.cit. 51 apart from the submarine cable27. Company Loret Group owns Global Caribbean Network (GCN) submarine cable, although its primary aim of business is car rental and leasing services. It also provides services relating to agricultural and building materials, industry vehicles, et cetera.28

More examples comprise submarine cable FALCON owned by Global Cloud Xchange, a company specialized in providing cloud storage services29 and submarine cable INDIGO-West connecting Australia with Singapore, partly owned by Australia’s Academic and Research Network (AARNET). It aims to provide network infrastructure and services for the needs of researchers and educational institutions30. It is a scientific organization supporting academic activities and given that Internet and communications are crucial for research, owning a submarine cable is an advantage and a priority for this company. iv. Territorial affiliation

One of the other distinguishing characteristics is a variety of options as to where a company is located. The business address of the company does not necessarily imply territorial restrictions of owned cables. For instance, Austrian company Telekom Austria partly owns submarine cable CADMOS connecting Cyprus with Lybia31 laid in these states’ maritime zones. There could be an opposite situation. In the case of DANICE submarine cable connecting Iceland with Denmark, the ownership wholly belongs to FARICE company consisting exclusively of Icelandic shareholders32.

27 See website of Werthein Group, section “About”, available at http://grupowerthein.com/en/group/history, last visited 01/09/2020. 28 See website of Groupe Loret, section “About”, available at http://www.groupeloret.net/the-group/about/, last visited 01/09/2020. 29 See website of Global Cloud Xchange, section “Products&Solutions”, available at http://globalcloudxchange.com/products-and-solutions/, last visited 01/09/2020. 30 See website of AARNET, section “About us”, available at https://www.aarnet.edu.au/about-us, last visited 01/09/2020. 31 Submarine Cable Map, op.cit. 32 See website of FARICE, section “About us”, available at http://www.farice.is/about-us/shareholders/, last visited 01/09/2020. 52 v. Business models

One more distinction in place is the role of a company in a cable- laying process. Some companies order a cable to be laid for their needs (a contractor in a cable laying agreement). They do not possess special equipment and a cable vessel to perform a project. These companies contract another legal entity specialized in services to construct a cable on the seabed. On the other side of a cable laying agreement there is a cable services provider whose main area of activity is to provide cable laying and maintenance services. Companies Google, Amazon, or Facebook are attributed to the first group while the second group is represented by companies such as, for instance, Global Marine, cable installation and maintenance company33, Deep Ocean, “an integrated provider of safe, high quality, innovative services and technologies for the subsea industry”34 or, the Seaworks group of companies providing offshore, subsea, and marine industries with a comprehensive range of specialist support vessels, remotely operated vehicles, marine equipment and services to lay and maintain submarine cables.35

These examples illustrate that corporate profile of companies engaged in submarine cables activities may vary significantly. Distinctions could be relevant in terms of competition, fair market value of their services, and tariffs36. However, in the present work, all companies are considered equally, irrespective of their legal form, place of business, primary business purpose or any other characteristics. All such companies are addressed under a collective name “companies”.

33 See website of Global Marine, section “Our profile”, available at http://www.globalmarine.co.uk/profile.html, last visited 01/09/2020. 34 See website of Deep Ocean, section “About”, available at https://deepoceangroup.com/about/, last visited 01/09/2020. 35 See website of Seaworks group, section “Home”, available at http://www.seaworks.co.nz/, last visited 01/09/2020. 36 S. von Schorlemer, “Telecommunications, International Regulation”, MPEPIL, 2009, 16, available at http://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law- 9780199231690-e998?rskey=axqzp7&result=4&prd=EPIL, last visited 01/09/2020. 53

3. Diversity of applicable law

As a consequence of different maritime zones through which submarine cables pass and due to interests of various actors involved, submarine cables legal regime consists of diverse types of norms.

First, submarine cables are regulated by public international law. It is represented by the UNCLOS and several other international agreements as further discussed in chapters IV and V. The UNCLOS establishes minimum requirements concerning submarine cables. These requirements are equal for the majority of states in the world since the UNCLOS is adopted by a great number of parties. However, implementation of international law differs significantly between states, and there is no unique practice worldwide. All states have a different economic, political, social, and geographical level of development and cannot equally implement laws on submarine cables.

The second source is national legislation. States shall establish a proper implementation of the UNCLOS in their domestic legal norms. In maritime areas under the jurisdiction of coastal states or where coastal states have rights to exercise several controlling powers, national law should govern in accordance with the UNCLOS. In the field of submarine cables regulation on national level is of great importance as it is analyzed in chapter VI.

The third type of applicable law is private law norms elaborated by cable industry itself. These norms apply in the field of submarine cables together with first two levels constituting a traditional system of legal regulation. They play an important role in the legal regulation of submarine cables. Such norms do not necessarily constitute binding agreements but are widely used as instruments accepted and agreed by the parties in submarine cables contracts. Typical provisions put into cable installation and maintenance contracts, best practices on laying submarine cables, and recommendations of cable companies’ unions advice companies on different aspects. It concerns not only laying of cables but also possible controversies with other seabed activities, environmental concerns and any other matters associated with submarine cables. A detailed analysis of private law norms is provided in chapter VI while the aim of this

54 section is to highlight that submarine cables and legal relations going along with cable activities appear to be a complex system.

It is a complicated task to approach submarine cables as an object of research given that many factors should be considered simultaneously. A mixture of public and private subjects involved in the legal regime of submarine cables makes it an interesting topic to investigate. In particular, to approach a matter of how international law is implemented by states and further specified by national legislators and private actors.

B) SUBMARINE CABLES AS A MULTI-FACETED OBJECT OF REGULATION

The nature of legal relations surrounding submarine cables can be characterized as multi-faceted and diverse legal nature. There are a lot of different angles from which it can be approached. Submarine cables not only demonstrate the plurality of public relations taking place with regard to them as it was discussed in the previous section. The nature of this object of regulation is so diversified that it could also be considered from other perspectives.

This section aims to address submarine cables in several dimensions. First, as a sum of interests of various subjects. In particular, states, business sector, and individuals. Each subject has its own interests in submarine cables. Nevertheless, they all aim at reaching the same result. Second, to present submarine cables as an infrastructure serving for a common need of stable telecommunications for all subjects. Third, to demonstrate that submarine cables constitute a global public interest.

1. Plurality of interests relating to submarine cables

The value submarine cables provide is addressed to various receivers. Each of them finds its own benefit in using them. For states, business, and individuals these benefits are different. a. Interests of states

States’ interests in submarine cables can be divided into two groups: interests during the cable laying process (primary interests) and

55 interests resulting from having cables in their maritime spaces (subsequent interests).

1) Primary interests

States participate and act in a different capacity during the cable laying process.

First, all states members of the UNCLOS have the right to lay cables in different maritime zones37. The same applies to non-parties of the UNCLOS by virtue of customary international law. The UNCLOS does not divide states into developed and developing states making them equal in this right. Thus, they perform in a capacity of “installer” being states laying submarine cables in other states’ maritime zones.

Second, states also perform on the other side being parties welcoming cables in their maritime zones. In particular, states are interested in regulating cable related activities given that the process is going in their maritime zones (under the sovereignty and not under the sovereignty of such states). Therefore, coastal states regulate cable installation in their domestic legal orders since they are willing their interests to be respected. From this perspective, states perform controlling functions. They ensure a competition between providers utilizing submarine cables infrastructure, that prices are based on market value, there is no monopoly, et cetera. It is especially relevant for developing states38.

2) Subsequent interests

Submarine cables have strategic importance for states from different perspectives. When laid in states’ maritime zones they ensure their economic, environmental and security interests39.

37 See the UNCLOS, Article 58, paragraph 1; Article 79, paragraph 1; Article 87, paragraph 1 (c); Article 112, paragraph 1. 38 Access to Submarine Cables: Guidelines, Harmonization of ICT Policies in Sub- Saharan Africa HIPSSA, Telecommunication Union, Geneva, 2013, p. 1. 39 For instance, Spain concerns national maritime security as the action of the state aimed at protecting national interests related to, inter alia, to submarine cables. See B. Navarro, “A Comprehensive New Approach: The National Maritime Security 56 i. Economic interests

Submarine cables connect states with the external world making a certain contribution to their economic development. Even remote territories or islands can be connected to participate in world policy by electronic means and telecommunications. Australia and New Zealand, for instance, significantly rely on submarine cables. Over 99% of all their international communications are conducted via submarine cables40. Australian navy announced “three-ocean” strategy protecting submarine cables from terrorist attacks41, understanding how important it is to be connected for geographically remote Australia and that cables should be protected from all kinds of threats. ii. Environmental interests

States and the international community are interested in submarine cables from the environmental point of view. It is important not only for remotely located states but for the common wealth of the whole world. Telecommunications means such as video conferences and video calls can contribute to the protection of the environment eliminating the necessity to transport staff to the location of the physical meeting and as a result reduce CO2 emissions. For example, a 2-day video conference between New York and Stockholm would produce 5,7 kg of CO2 due to the operation of submarine cables while CO2 emissions from aircraft used for bringing only 2 participants of the conference would count to 1,920 kilograms42. iii. Security interests

States also heavily rely on submarine cables concerning security interests. Some cables are laid for military purposes and ensure national security. Historically submarine cables were used by

Strategy”, Spain and the Law of the Sea: 20 years under LOSC, Spanish Yearbook of International Law, vol. 21, 2017, pp. 225-238, p. 231. 40 Submarine Cable Information Sharing Project: Legislative Practices and Points of Contact, op.cit., p. 3. 41 P. Khanna, Connectography: mapping the future of global civilization, First edition, New York: Random House, 2016, p. 126. 42 D. Burnett, “Impacts on international submarine cables…”, op.cit., p. 162. 57 governments for various military operations such as bilateral communications, acoustic monitoring, and telecommunications43. However, some cables continue to perform their initial functions, such as facilitating financial transactions, supporting surveillance systems, collecting intelligence, listening through hydrophones, et cetera44. b. Business sector interests

Not only states but large business players such as banks, stock exchanges, airlines, and maritime industry also depend on submarine cables forasmuch as they ensure daily communications, transactions, and communications of business. Multinational corporations, telecom carriers, mobile operators, and content providers depend on submarine cables for the prosperity of their business. In particular, the Society for Worldwide Interbank Financial Telecommunications (SWIFT) daily transmits 15 million messages to more than 8300 banking organizations, securities institutions, and corporate customers in more than 200 countries or entities45. The global significance for domestic economies and communications is reported as increasing every year46.

Along with telecommunications cables, business sector also utilizes submarine power cables supplying offshore platforms at sea, wind farms and turbines with electricity. For instance, Norwegian state- owned company Statoil operating in the energy industry uses cables for supporting work of pipelines on the Norwegian continental shelf47. The company Amazon uses submarine telecommunications

43 D. Burnett, R. Beckman, T. Davenport, Submarine Cables: The Handbook…, op. cit., p. 339. 44 B. Clark, “Undersea Cables and the Future of Submarine Competition”, Bulletin of the Atomic Scientists, vol. 72, Issue 4, 2016, pp. 234-237, p. 234, available at http://www.tandfonline.com/doi/pdf/10.1080/00963402.2016.1195636?needAcc ess=true, last visited 01/09/2020. 45 D. Burnett, R. Beckman, T. Davenport, Submarine Cables…, op.cit., p. 1. 46 Submarine cable almanac, Submarine Telecoms Forum, issue 24, November 2017, Foreword, available at http://subtelforum.com/products/submarine-cable- almanac/, last visited 01/09/2020. 47 See website of Statoil, available at https://www.statoil.com/en/news/archive/2006/05/23/OrmenLangeControlCa bleIsLaidFromGiganticCarousel.html, last visited 01/09/2020. 58 cables for improving the speed and quality of its web services, as well as Japanese company Softbank relies on submarine cables for “building and optimizing its network infrastructure to support rapidly increasing traffic demand and its customers”48. Well-known content providers Netflix and Spotify also use submarine cables to transfer their data to customers49.

Apart from major players of the market, middle class and small business in every state also depend on submarine cables. A simple example would be a small hotel or guest house on the coast of the Mediterranean. In order to attract tourists, the owner must make an advertisement in Internet, create an account in online-based platform to let tourists know about the property, be available on phone and email to conduct financial transactions and solve legal matters, et cetera. The same applies to travel agencies, supermarkets, restaurants, stores, or any business desiring to prosper in the modern market conditions.

Several companies have turned submarine cables for their business in a very specific way. They collect abandoned submarine cables from the seabed. For instance, telegraph cables previously owned by telegraph companies are currently not in use for a long period. Nevertheless, the material from which cables are made still has a certain value and can be reutilized. Moreover, states often have a specific condition on laying cables in their maritime zones. It is formulated as an obligation for cable owner that a cable shall be removed from the seabed after its lifespan. In this case, such service may be provided by a specific company CRS Holland, a pioneer in deep cable recovery.50 Although it is not a primary purpose of submarine cables for business, it is worth mentioning in this context.

48 See website of Softbank, available at https://www.softbank.jp/en/corp/group/sbm/news/press/2017/20171030_01/, last visited 01/09/2020. 49 B. Morris, “Submarine cables: a deep dive into underwater connectivity”, Tata Communications New World Blog, 28 of July, 2015, pp. 1-4, p. 1, available at https://www.tatacommunications.com/blog/2015/07/submarine-cables-a-deep- dive-into-underwater-connectivity/, last visited 01/09/2020. 50 See website of CRS Holland company, available at http://www.crsholland.com/, last visited 01/09/2020. 59

One more perspective expectancy from submarine cables for business is shipping costs reduction. With the current development of 3D printing technologies, it might not be necessary to transport goods by shipping or carrying by airplanes from one part of the world to another. Submarine cables could transfer necessary information, and objects could be printed at a place where they are in demand. The cable industry is nowadays looking for faster and better development of 3D printing technologies51. c. Interests of individuals

Submarine cables are laid and further operated in the framework of civil law contracts between two companies (usually titled seller and purchaser) and are parts of business projects which are not always triggered by state’s initiative. At the same time, submarine cables also serve everyday needs. Irrespective of the formal design of contractual relations, submarine cables finally provide ordinary people with Internet, calls, messages, and other data transmitted by cables.

A fact that cables are formally laid in favor of a contracting party (a client under cable installation contract) and usually represented by a private company or a consortium of private companies does not change submarine cables’ nature. Eventually they are placed for public purposes. In a legal sense, submarine cables are considered as a property of the owner who is free to act with cables upon its will. However, the last consumer of cables as a product is general audience and individuals.

From an individual’s perspective it is irrelevant for a person how exactly cables are laid on the ocean floor and how they transmit signals. The most important is that the final consumer has a stable Internet at home, can purchase tickets online, book a hotel and chat with friends. It appears that not only states and states’ population depend and interested in a continuous operation of submarine cables but every single person including the author.

Submarine cables make connections global and allow transmitting data from one part of the world to another. Today anyone could

51 D. Burnett, “Impacts on international submarine cables…”, op.cit., p. 162. 60 have business with anyone by working remotely in the Internet. Mailboxes and professional social networks require access to the global network of submarine cables on a daily basis. Such cooperation between users around the world eliminates even state borders, customs formalities, and distances. It makes people connected.

One more perspective from which individuals are interested in submarine cables is the right to online education. There are numerous online resources and programs available with Internet access nowadays. It is especially relevant for remote and northern territories whose only way to external world is Internet. Some submarine cables are even announced to be laid to bring low-cost Internet connection for northern communities. For instance, the Quintillion Subsea Cable System52. This cable system’s first section had been laid near the coast of Alaska and connected some of the indigenous communities via Internet for a much lower price than satellite connection used on these territories before53. The same applies to health care and telemedicine54.

2. Submarine cables as an essential infrastructure for providing telecommunications

Infrastructure is primarily a tool helping a particular activity to be performed and developed further. In the present case submarine cables could be considered as a critical infrastructure for transmitting telecommunications. a. Defining submarine cables as an infrastructure

Taking into consideration interests different actors have in submarine cables and their functions as well as cables’ public-private nature, the definition of infrastructure could successfully apply to

52 See website of Quintillion, available at http://qexpressnet.com/system/, last visited 01/09/2020. 53 M. Delaunay, “Briefing Note Submarine Cables: Bringing Broadband Internet to the Arctic, a Life Changer for Northerners?”, Arctic Yearbook 2017, pp. 2-10, p. 6, available at https://www.arcticyearbook.com/images/Articles_2017/briefing- notes/3_Submarine_Cables.pdf, last visited 01/09/2020. 54 S. von Schorlemer, “Telecommunications, op.cit., p. 1. 61 them. The infrastructure, as a basis and vertebrae for further processes, can be defined as follows:

“the basic physical and organizational structure needed for the operation of a society or enterprise or the supporting structure/base/foundation for a system or organization” 55.

In the case of submarine cables, it is not only the infrastructure but the infrastructure serving for an international community. Thus, the definition of “global information infrastructure” can also be considered in relation to submarine cables. It reads as follows:

“proposed telecommunications and information technology networks as a governmental and nongovernmental, worldwide infrastructure. Its objective is dissemination of information and remote collaboration spurring faster and greater economic growth”56.

Therefore, submarine cables as a global information infrastructure have several important characteristics to examine. b. Elements of submarine cables as an infrastructure

The global network of submarine cables plays the role of a unifying force between states, people, and economies making communications global. The development of succesful infrastructure is becoming a prerequisite for economic development, especially for developing countries allowing them to join the international market and to have access to the information57. Submarine cable in service means physical elements to be installed on the seabed and onshore. Such physical elements include cables themselves, landing stations and repeaters under the property of public entities, private companies, or companies of a mixed legal nature as it was discussed above. At the same time, cables are laid in various maritime zones attributed exclusively to states (except for the high seas and international seabed area, maritime zones not under any state’s

55 C. Turner, D. Johnson, Global infrastructure networks, Northampton: Edward Elgar Publishing Limited, 2017, p. 1. 56 B. A. Garner (ed.), Black’s Law Dictionary, 7th edition, St. Paul, Minn.: West Publishing Co., 1979. 57 L. Main, “The global information infrastructure…”, op.cit., p. 95. 62 jurisdiction) and no private actor can claim a maritime zone to be owned by it. These two elements are considered in this sub-section.

1) Property

Successfully developed material infrastructure powers the existence of services provided with the help of such infrastructure. For instance, the history knows examples of communicating through the Internet transmitted by submarine cables when all other means of communications were blocked for political reasons58. In the present time, government authorities are able to provide services online, respond to queries and communicate better due to well-working tangible infrastructure represented by submarine cables. Thus, the ownership and proper maintenance of the infrastructure is a key issue for its development.

Submarine cables as an infrastructure may be in a different kind of possession and ownership. A major part of all submarine cables constitutes a private property of the consortium of companies as they maintain it for their telecommunications business59. On several occasions cables are owned by a solo proprietor (for instance, cable Junior owned by Google individually60). Sometimes the infrastructure can be rented. For instance, it is possible to rent a time on a submarine cable without owning it61. The same applies to cable

58 During the 1995 conflict in the Balkans the external server helped people separated by the conflict to communicate. See L. Main, “The global information infrastructure…”, op.cit., p. 84. 59 For instance, a submarine cable Circle North connecting Netherlands with England is owned by two companies: euNetworks headquartered in the United Kingdom (see more information at the company’s website, available at https://eunetworks.com/about/about-eunetworks/, last visited 01/09/2020) and VTLWaveNet, also a privately held company (see more information at the company’s website, available at (https://cloudscene.com/service- provider/vtlwavenet, last visited 01/09/2020). Therefore, a cable constitutes a joint private property of these two companies. 60 Submarine Cable Map, op.cit. 61 R. Miller, “Google’s latest undersea cable project will connect Japan to Australia”, TechCrunch, 2018, pp. 1-2, p. 1, available at https://techcrunch.com/2018/04/04/googles-latest-undersea-cable-project-will- connect-japan-to- australia/?guccounter=1&guce_referrer_us=aHR0cHM6Ly93d3cuZ29vZ2xlLmN vbS8&guce_referrer_cs=cQiMy2kqpNFpZpQ2MeBUig, last visited 01/09/2020. 63 stations facilities onshore. They can be rented from a coastal state or a company headquartered in such state62. Another form of property is when a cable is in the public domain. Although this situation is not common in the cable industry some examples exist in practice. One would be a cable Kuwait-Iran owned by Telecommunication Infrastructure Company of Iran working as the governmental body of ICT Ministry and Kuwait Ministry of Communications63.

Forms of submarine cables possession may vary that one more time underlines their hybrid and complex legal regime.

2) Location

Although submarine cables have different type of ownership, the seabed they are laid on has a standard division established by the UNCLOS. Thus, submarine cables as an infrastructure are laid in maritime spaces under the sovereignty of coastal states (territorial sea and archipelagic waters), maritime spaces not under the sovereignty of coastal states but where they have rights to exercise certain jurisdiction (contiguous zone, exclusive economic zone, and continental shelf) and maritime areas not subject to the jurisdiction of coastal states (high seas and international seabed area). The detailed regulation of submarine cables in these maritime areas is addressed in chapter IV.

Essential infrastructure providing society with public goods deserve well-developed legislation specifying their certain status. It becomes even more relevant when the infrastructure is global and unites not only parts of one state but serves for the needs of the international community. The infrastructure helps states to prosper, maintain and develop economic wellbeing, and be connected to the rest of the world. This is the reason why every state aims at developing and

62 S. Esselaar, A. Gillwald, E. Sutherland, “The regulation of undersea cables and landing stations”, International Development Research Centre, pp. 1-16, p. 3, available at http://www.cablesm.fr/2007_esselaar-et-al-2007-undersea-cables.pdf, last visited 01/09/2020. 63 Submarine Cable Map, op.cit. 64 maintaining its modern infrastructure. Therefore, submarine cables are given a great significance.

3. Submarine cables as a matter of global public interest

Legal norms of public interest are norms addressed to regulate matters pretending to reflect the most important concerns and worries of an international community since they accumulate different interests of various groups. Together they are based on common values recognized by states, international organizations, civil society, and all other actors on the international arena admitting the necessity of existence of such interests64. The present sub-section is devoted to the analysis of submarine cables as an issue constituting global public interest. a. Definition of global public interest

The modern international law does not provide with the definition for the term of a global public interest. There is only a shared vision that global public interest is expected to be something for the benefit of everybody. However, two key characteristics of such an interest might be distinguished.

1) Global public interest is not equivalent to individual interests of states

Public interest is a term having various definitions in scholarly writings. In the legal doctrine, it is defined as:

“an interest of society as a whole, i.e. an interest that goes beyond the interest of the individual or of mere factions65.

Some authors argue that public interest is the one generally beneficial and good for society66. Considering law dictionaries, an authoritative Black’s Law Dictionary defines public interest as:

64 C. Turner, D. Johnson, Global infrastructure…, op.cit., p.6. 65 A. J. Bělohlávek, “Public Policy and Public Interest in International Law and EU Law”, Czech Yearbook of International Law, 2012, pp. 117-149, p. 120. 66 I. Malý, “The Issues of Defining and Enforcing Public Interest”, paper presented at the Theory Seminar Organized by the Department of Public 65

“(1) The general welfare of the public that warrants recognition and protection; and (2) Something in which the public as a whole has a stake; especially an interest that justifies government regulation”67.

Another law dictionary – Barron’s Dictionary – defines public interest as:

“that which is best for society as a whole”, but then adds it is “a subjective determination by an individual such as a judge or governor, or a group such as a [...] legislature of what is for the general good of all people”68.

In the abundance of definitions, there is, however, still no agreement in the academic society of what should be considered as a public interest.69

The traditional concept arguing that “public” means pertaining to a state, the state-ruled, or equaling to the interest of a state, does not apply in this case. The public interest, especially when it is a global public interest does not mean the sum of individual interests of states but constitutes the interest of a different nature70. States within the international legal order are considered as sovereign and equal subjects constructing the horizontal and decentralized system71.

Economy of the Faculty of Economics and Administration at Masaryk University in Brno in Cooperation with the Public Economy Association, Brno: Masaryk University 21-22, 1999. 67 B. A. Garner (ed.), Black’s Law Dictionary…, op.cit. 68 S. H. Gifis, Law Dictionary, 4th ed. New York: Barron’s Educational Services, 1996. 69 R. Huesa, “La protección del interés público global: una nueva dimensión para las normas y obligaciones internacionales”, in N. Bouza, C. García, Á. J. Rodrígo, Coordinador: P. Pareja, La gobernanza del interés público global. XXV Jornadas de la Asociación Española de Profesores de Derecho Internacional y Relaciones Internacionales, 2015, pp. 253-286, p. 255.; A. J. Rodrigo, “Más allá del derecho internacional:el derecho internacional público”, in R. Méndez-Silva, Derecho internacional, primera edición, México: El Colegio Nacional: UNAM, Instituto de Investigaciones juridicas, 2019, pp. 67-98, p. 77. 70 O. Casanovas, A. J. Rodrigo, Compendio de Derecho Internacional Público, sexta edición, Madrid: Tecnos, 2017, p. 355. 71 P. Reuter, Droit international public, 7ª ed., Paris: Presses Universitaires de France, colección Thémis, 1993, p. 22. 66

However, as opposed to this traditional concept the new notion of a public interest has emerged stating that public interest does not mean an interest of a state but the interest of an international community as a new object of regulation by the international legal order72.

States do not have their own interests but rather have one common interest together with other actors. Since the complex system of current international law involves interests of many actors and constitutes more than particular individual interest, the global public interest should be considered as an interest of the international community.

2) Global public interest is an interest of the international community

Global public interest contains the interest of an international community meaning that in the modern world states are not the only subjects. They coexist together in a manner of interdependence and cooperation but also have relations with other international law actors. Such actors, for instance, international governmental organizations, international non-governmental organizations, and individuals should successfully integrate to the international community. Therefore, the current international law represents the variety of actors with complex relations between themselves. At the same time, it remains reluctant and conservative regarding its traditional institutions such as states that “have not been challenged towards the protection of community interests”73.

Despite the conservativeness of international law, the central element to be considered is the existence of collective interests, a matter of

72 E. Riedel, “International Environmental Law. A Law to Serve the Public Interest?. An Analysis of the Scope of the Binding Effect of Basic Principles (Public Interest Norms)”, in J. Delbrück (ed.), Proceedings of an International Symposium of the Kiel Walther-Schücking- Institute of International Law, March 6 to 8, 1996, Berlin: Duncker & Humblot, 1997, p. 97. 73 S. Villalpando, “The Legal Dimension of the International Community: How Community Interests are Protected in International Law”, European Journal of International Law, vol. 21, 2010, pp. 387-419, p. 410. 67 concern to all subjects of current international law. These interests are different from the interests of any of the actor taken individually since such interests identify a shared value that all actors recognize as the one which need common protection, a collective action under international law. Global public interest consisting of collective interests that are not the sum of individual interests but concerns of the international community constitutes general interest. This general interest should be regulated by rules and institutions of international law and deserves legal protection reflecting social interests74. As a former judge of the International Court of Justice Mr. Simma noted, “A rising awareness of the common interest of the international community, a community that comprises not only states, but in the last instance all human beings, has begun to change the nature of international law profoundly”75.

There are three elements to be covered by the notion of a public interest. First, objects of a public interest serve for the benefit of international community in general. Second, they have an origin in a situation of mutual interdependence. Third, they are characterized by their lack of reciprocity76. Thus, interests of international community should be protected by the international legal order and submarine cables deserve consideration of having the status of the interest of an international community. b. Recognition of submarine cables as a matter of global public interest

There is no definitively established list of areas of international law to be considered as a global public interest. Consequently, any area might be attributed such status if its appurtenance to it is justified. In

74 O. Casanovas, A. J. Rodrigo, Compendio de Derecho Internacional..., op.cit., p. 155-156; A. J. Rodrigo, “Más allá...”, op.cit., p. 75. 75 B. Simma, “From Bilateralism to Community Interest in International Law”, Recueil des Cours de l'Academie de Droit International, vol. 250, 1994, pp. 217- 384, p. 234. 76 E. Kornicker Uhlmann, “State Community Interests, Jus Cogens and Protection of the Global Environment: Developing Criteria for Peremptory Norms”, Georgetown Environmental Law Review, vol. 101, 1998-1999, pp. 101-135, p. 107. 68 this sub-section cable-related activities are examined as one of such areas constituting the global public interest.

Submarine cables not only constitute an object of a public interest but a matter of global public interest meaning that many subjects on different territories recognize the value of submarine cables. There are two elements connected to the interest. First is global, meaning that submarine cables are not an object causing concern only in a particular territory or in a particular state. As it was addressed earlier in this chapter cables are laid worldwide bringing telecommunications to various territories. Second is public, meaning that various groups of subjects are interested in submarine cables where each group has its own concern.

Public interest is most associated with being present in affairs traditionally belonging to state-level policy such as international relations, military affairs, economics, et cetera. Scholars also find the public interest in the areas of protection of the world cultural and natural heritage; high seas and its resources; the seabed of the oceans and their mineral resources; the Antarctic; problems of climate change and reducing biodiversity; protection of basic human rights; maintenance of international peace and security; et cetera77. Apart from traditional fields, there could be other fields of relations where public interest may present. Gradually telecommunications also become to be considered as an area of public interest being essential source of connectedness78. Therefore, the public interest is present in the legal regime of submarine cables given that submarine cables and cables infrastructure serve for the interests of many subjects taken each separately and simultaneously for all them together.

The public interest is often associated with the concerns of states as it follows from the traditional concept mentioned above. However, states’ and other international community’s interests are not always equal, and what is considered by the state as a public interest it aims to protect not always equally interpreted by society. For instance, military affairs are widely considered as being a matter of a public matter. At the same time, state’s society does not necessarily support

77 O. Casanovas, A. J. Rodrigo, Compendio de Derecho Internacional..., op.cit., p. 156. 78 P. Khanna, Connectography: mapping the future…, op.cit., p. 25. 69 acts of war or aggression covered by the concept of defense of national interests supported by the state. A well-known Russian lawyer and international law expert, N.E. Tyurina in her monograph Public interest in international trade law79 drew attention to the definition of public interest, quoted by Professor Tikhomirov in his textbook Public Law80. He argues that public interest is the interest recognized by state and ensured by law, providing for interests of a social community, the satisfaction of which serves as a condition and a guarantee of this social community existence and development81. A particular attention in this definition one should turn to the aspect that interests of society and the state are not equal, but the special role of the state in the expression and protection of both interests is emphasized.

In the case of submarine cables, it appears to be the opposite. Both state and society support maintenance of existing cables and laying of new ones. This model works because both parties have their benefit from cables and understand their significance for each of them. States find submarine cables helpful in providing and ensuring their security while the society along with business sector finds their benefits in submarine cables in the opportunity to be connected and have a chance to communicate with other members of society.

In the framework of submarine cables as a public interest there is a recognized universal value of submarine cables associated with interests of international community. In this case, it is an interest serving for everyone’s wealth and therefore might be considered as a global public interest. c. Legal consequences for submarine cables as a matter of global public interest

79 N. E. Tyurina, Public interest in international trade law (Публичный интерес в международном торговом праве), in Russian, Kazan: Abstract Publishing, 2016, p. 27. 80 Y. A. Tihomirov, Public Law (Публичное право), in Russian, Moscow: BEK, 1995. 81 A. F. Chardantsev, Theory of State and Law: textbook for high schools (Теория государства и права: учебник для ВУЗов), in Russian, Moscow: Yrait-M, 2001, p. 171. 70

One of the most important purposes for which submarine cables are laid is to transmit telecommunications and to provide international community with stable and reliable Internet connection. Internet is a technology significantly influencing the development of other areas. It stimulates the development of local economies by extending to the international market and provides connectivity making societies open and connected. The Internet developed fast and wide and finally gained the power that no other connectivity technology managed to do before. To acquire fifty million users, it took telephone seventy- five years, while Internet reached this amount within five years82. Therefore, it is worth examining submarine cables considered as global public interest in two following dimensions: submarine cables as a human right and submarine cables as a public good.

1) Consideration as a human right

Some researchers argue that submarine cables might be considered in the context of basic human rights. Internet is one of the main things a human being needs, it is a “basic need and a human right” as defined by some authors83. Along with water, food, electricity, the Internet became a necessity of everyday life. Even some governments started to recognize it. For instance, the Canadian Radio-television and Telecommunications Commission declared broadband Internet as a basic need in 201684. In Finland, Internet access is a universal service obligation at a minimum rate of 2Mbps since 2015, with a target of 10Mbps by 202185. Many other states are developing their Internet policy and declare to provide all their citizens with Internet access86. UN also took action on this issue and

82 L. Main, “The global information infrastructure…”, op.cit., p. 89. 83 M. Delaunay, “Briefing Note Submarine Cables…”, op.cit., p. 2. 84 See website of the Government of Canada https://www.canada.ca/en/radio- television-telecommunications/news/2016/12/crtc-establishes-fund-attain-new- high-speed-Internet-targets.html?wbdisable=true, last visited: 01/09/2020. 85 M. Delaunay, “Briefing Note…”, op.cit., p. 2. 86 R. Davies, “Broadband as a universal service”, European Parliamentary Research Service Briefing, 2016. Members' Research Service, European Parliament, available at http://www.europarl.europa.eu/RegData/etudes/BRIE/2016/581977/EPRS_BR I(2016)581977_EN.pdf, last visited 01/09/2020. 71 passed a non-binding resolution defining Internet access as a basic human right87.

Despite the views of some authors and institutions considering submarine cables as a global public interest constituting a human right, the author adheres to the opinion that considering Internet and other services provided by cables as a basic human right might be too excessive. Provided the importance of the category of human rights in international law, only inalienable rights should be considered as basic human rights, ones an individual cannot survive without. It appears that it is still possible to survive without Internet since it does not have a connection to the physical welfare of a person. There are still areas in the world not connected by means of telecommunications where other problems of human wellbeing exist and the later are given the priority. For instance, the access to the Internet in Africa is limited and unavailable to many of residents88. Along with that there are problems such as poverty, hunger, lack of fresh water that still have priority and require to be solved firsthand. Therefore, the formulation of a human right is not appropriate for submarine cables. However, submarine cables might be considered as a public good which appears to be more suitable in this context.

2) Consideration as a public good

Some scholars contend that Internet transmitted by submarine cables might be considered as a public good nowadays89. Other academics consider submarine cables as “common good that is the foundation of the increasing globalization and interconnectedness of the

87 Human Rights Council, Thirty-second session Agenda, item 3 Promotion and protection of all human rights, civil, political, economic, social and cultural rights, including the right to development, 2016, available at https://www.article19.org/data/files/Internet_Statement_Adopted.pdf, last visited 01/09/2020. 88 P. Brunet, O. Tiemtoré, M. Vettraino-Soulard, Ethics and the Internet in West Africa: Toward an Ethical Model of Integration, Trenton: Africa World Press, Inc., 2004, p. 114. 89 J. Kurbalija, An Introduction to Internet Governance: 7th edition, Switzerland: DiploFoundation, 2016, p. 199. 72 world”90. The presence of submarine cables is an obligatory condition of Internet as a public good (except for a minor percentage provided by satellites in remote areas). Along with that, it is not provided for free. Users pay providers for the access to Internet and providers, after a long chain consisting of several subjects, pay submarine cables owners for using their infrastructure. The main concern here is how to strike a balance between private companies’ business and the status of public good in relation to the access to the Internet so that all people may enjoy it. In this case, national laws and policies restricting fees, making it obligatory to provide Internet for vulnerable categories of society in public places for free, or prescribing more favorable conditions for some groups of the population may be a solution. Given that private companies are under the jurisdiction of states, the later can regulate their activity concerning submarine cables.

The question whether the status of a public good may be acquired not only by the Internet but by submarine cables as an infrastructure is not defined clearly. From this perspective, when infrastructure is not domestic but of international significance and constitutes global public interest, as the case of submarine cables might be, its significance increases even more. The development of the Internet could not have been possible without proper conditions in which it had been developing. Such conditions are the presence of submarine cables and from this perspective they can also be attributed the status of a public good.

Consequently, legal provisions relating to submarine cables constitute an issue of global value and should be acknowledged as provisions regulating a global public interest taking into consideration importance of submarine cables and services provided by them.

D) INSTITUTIONS GOVERNING SUBMARINE CABLES

When area of public relations is not exclusively regulated by public international law but simultaneously includes other, non-traditional sources, it becomes of particular interest especially concerning

90 T. Davenport, “Submarine Communications Cables and Law of the Sea: Problems in Law and Practice”, Ocean Development & International Law, vol. 43, Issue 3, 2012, pp. 201-242, p. 201. 73 governing institutions. Although the right to protect public interest such as submarine cables is often associated with states91 (through, for instance, international governmental organizations), in the current international law, it is not always the case. This section is dedicated to the institutional aspect of submarine cables governance. First, it analyses the global governance concept highlighting features of regulation by non-traditional institutions. Second, it addresses governmental international organizations which could have taken the leading role in regulating submarine cables matters but have not done it so far. Third, regulation by non-state actors under the global governance theory with the emphasis on the International Cable Protection Committee is examined.

1. Global governance concept in relation to submarine cables

Non-state actors which de facto perform the role of states acting through international organizations in the absence of legal regulation play a significant role in the area of submarine cables. This is associated with the term of global governance providing important new perspectives on phenomena of international cooperation92. The main idea is that non-governmental institutions exercise international public authority, almost the same as states do. The definition of public authority was formulated by the well-known legal scholar Armin von Bogdany as follows:

“we define authority as the capacity based in law to determine others, to reduce their liberty. The determination can be a legal one. This is the case if an act modifies the legal situation of a legal subject without its consent”93

He continues emphasizing that public authority is characterized by:

91 See A. Kulick, Global Public Interest in International Investment Law. Cambridge Studies in International and Comparative Law, Cambridge, UK: Cambridge University Press, 2012, p. 57. 92 See more in A. Von Bogdany, P. Dann, M. Goldmann, “Developing the Publicness of Public International Law: Towards a Legal Framework for Global Governance Activities. The Exercise of Public Authority by International Institutions”, Conference paper, Part of the Beiträge zum ausländischen öffentlichen Recht und Völkerrecht book series Beiträge, vol. 210, pp. 3-32, p. 5. 93 A. Von Bogdandy, M. Goldmann, “The Exercise of International Public Authority through National Policy Assessment”, International Organizations Law Review, vol. 5, 2008, pp. 241-298, p. 259. 74

“the making of unilateral decisions taken in the name and interest of an overarching, general entity, and their enforcement”94.

Finally, he concludes that:

“we consider as public and international any authority which is exercised on the basis of a formal or informal international act of public authorities, mostly states, to further a goal which they define, and are authorized to define, as a public interest”95. As professor mentions, the main idea is that not only states may efficiently act in terms of regulation of public relations but also institutions not formally recognized as official law-makers. He further elaborates that:

“global governance concept recognizes the importance of international institutions, but highlights the relevance of actors and instruments which are of a private or hybrid nature, as well as of individuals – governance is not only an affair of public actors”96.

This theory appears to be informal and close to existing practice97. Although global governance is a multidisciplinary term initially appeared in economics98, it is successfully used in many disciplines including law nowadays.

In practice, the public authority exercised by non-state actors comes into existence by the establishment of non-binding standards. These standards are followed since the benefits of observing them outweigh the disadvantages of ignoring them99.

94 Ibid, p. 263. 95 Ibid, p. 264. 96 A. Von Bogdany, P. Dann, M. Goldmann, “Developing the Publicness…, op.cit., p. 7. 97 Ibid, p. 8. 98 O. E. Williamson, “The Economics of Governance: Framework and Implications”, The American Economic Review, vol. 95, No. 2, Papers and Proceedings of the One Hundred Seventeenth Annual Meeting of the American Economic Association, Philadelphia, PA, January 7-9, 2005, pp. 1-18, p. 3. 99 A. Von Bogdany, P. Dann, M. Goldmann, “Developing the Publicness…, op.cit., p.12. 75

The concept of global governance also stipulates for the appearance of the new branch of international law, international institutional law, that appears to be broader than traditional law of international organizations. It is not unanimously recognized yet but tends to receive more support in the legal doctrine100. It analyses global governance phenomena by studying activities and nature of authority exercised by institutions not classified as classic (intergovernmental) international organizations. These institutions do not fit within the scope of the system of subjects of international law, but the functions exercised by them and their position in the public relations covered by the international law should not be underestimated. In this case, possibly more than in any other field of law it becomes visible that international law should accept new forms of governance and deal with them equally as with those that constitute the traditional system.

The development of global governance concept in the field of submarine cables also facilitates the development of global administrative law, a new branch of law evolving nowadays. It is not an organized field of law yet, but this concept is already in use, and one of the examples illustrating its emergence might be submarine cables. The global administrative law is characterized by the “vast increase in the reach and forms of transgovernmental regulation and administration designed to address the consequences of globalized interdependence in different fields including telecommunications”101. Global administrative law emergence is associated with shifting many regulatory decisions from the national to the global level. In the case of submarine cables, it is recognized that regulating submarine cables exclusively within national law is not the perspective option since they constitute an international activity.

2. International organizations

100 J. Klabbers, “The Paradox of International Institutional Law”, International Organizations Law Review, vol. 5, 2008, pp. 1-23, p. 5, available at http://www.helsinki.fi/eci/Publications/Klabbers/JKParadox.pdf, last visited 01/09/2020. 101 B. Kingsbury, N. Krisch, R. B. Stewart, “The emergence of global administrative law”, Law and Contemporary Problems, vol. 68:15, 2005, pp. 15-61, p. 16, available at https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1361&context=lcp, last visited 01/09/2020. 76

Submarine cables comprise a significant part of the law of the sea and theoretically should fall within the scope of competence of one of several international organizations having competence in this field102. However, no international organization has taken the role of the leading agency comprehensively dealing with legal, technical, advisory, and other matters of submarine cables. The following international organizations in the fields of telecommunications and maritime affairs are referred in this context: The ITU and International Maritime Organization (IMO) as UN specialized agencies; Commission on the Limits of the Continental Shelf (CLCS) and International Seabed Authority (ISA) as institutions created directly for implementation of the UNCLOS. a. International Telecommunication Union

The ITU is the UN specialized agency for information and communication technologies. One of its functions is to develop technical standards that ensure networks and technologies seamlessly interconnect and to improve access to information and communications technologies worldwide. The unique feature distinguishing the ITU from other UN agencies is that it has both public and private sector membership. In addition to 193 member states, ITU membership includes information and communications technologies regulators, many leading academic institutions and some 700 tech companies103.

At the same time, the ITU regulation relates mostly to telecommunications transmitted by submarine cables without considering submarine cables as an infrastructure. Besides telecommunications matters, the law of the sea part remains unattended forasmuch as the ITU does not address submarine cables from the gegraphical perspective meaning that no regulations are

102 For a summarized schematic diagram of international ocean governance structure showing the abundance of organizations see P. Chaumette, “Generalities”, in P. Chaumette, Transforming the Ocean Law by Requirement of the Marine Environment Conservation, Madrid: Marcial Pons, 2019, pp. 11-45, p. 37. 103 As of 01/09/2020. See the ITU website, section “About ITU”, https://www.itu.int/en/about/Pages/default.aspx, last visited 01/09/2020. 77 provided with regard to maritime zones where submarine cables are laid. b. International Maritime Organization

The IMO is a specialized agency of the UN and the global standard- setting authority for the safety, security, and environmental performance of international shipping. Its primary role is to create a regulatory framework for the shipping industry that is fair and effective, universally adopted and widely implemented. It provides with agreed regulations and standards, adopted, and implemented on international basis. In other words, the IMO provides the regulatory framework and serves as a forum where the UN’s member states, civil society, and the shipping industry are working together104.

The IMO covers all aspects of international shipping such as ship design, construction, and equipment. Submarine cables occasionally appear in the IMO regulations, in particular, concerning cable ships engaged in cable laying. These special vessels are based in most strategic locations all over the world and used by companies operating submarine cables. At least 55 cable ships, most important for cable reparations exercise their activity nowadays105. These vessels possess certain special equipment responsible for prompt repair of damaged cables. To repair a damaged cable, cable ship is sent to the location of fault and required to arrange reparation process106 which takes from several weeks to several months and often exceeds the sum of 1 million of United States dollars107. However, submarine cables do not constitute IMO’s principal object of regulation. c. Commission on the Limits of the Continental Shelf

104 IMO website, section “About IMO”, http://www.imo.org/en/About/Pages/Default.aspx, last visited 01/09/2020. 105 International Cable Protection Committee website, Cableships of the World section, available at: https://www.iscpc.org/cableships-of-the-world/?items=0, last visited 01/09/2020. 106 S. Drew, A. Hopper, “Catch fish, not Cables…”, op.cit., p. 8. 107 E. Wagner, “Submarine Cables and Protections Provided by the Law of the Sea”, Marine Policy, vol. 19, 1995. No.2, p. 132. 78

The purpose of the CLCS is to facilitate the implementation of the UNCLOS in respect to the establishment of the outer limit of the continental shelf beyond 200 nautical miles. Under the UNCLOS, coastal states shall establish outer limit of the continental shelf where it extends beyond 200 nautical miles on the basis of the recommendation given by the Commission108. Thus, the CLCS makes recommendations to coastal states on establishment of such limits109. The functions of the CLCS are as follows. First, to consider relevant information and other materials such as, for instance, geodetic data and charts submitted by coastal states concerning the outer limit of the continental shelf, and to make recommendations in accordance with Article 76 of the UNCLOS. Second, to provide scientific and technical advice, if requested by the coastal state during the preparation of such information.

The CLCS does not have any direct functions in relation to submarine cables. Additionally, it does not consider them when giving recommendations to state members because the location of submarine cables cannot in any way influence the decision on the outer limit of the continental shelf. Thus, the CLCS as an institution promoting the implementation of the UNCLOS was not designed to address submarine cables. At present it also cannot extend its focus to cover submarine cables. First, because its powers are explicitly outlined in Annex II of the UNCLOS and there is no discretion to possess more. Second, due to the massive workload of the CLCS110 it appears that there is no space left for any other issues including submarine cables. d. International Seabed Authority

The ISA is an autonomous international organization established under the UNCLOS and the 1994 Agreement relating to the

108 UNCLOS, Article 76 (8). 109 Commission on the Limits of the Continental Shelf website, section “The Commission, Its Purpose And Functions”, http://www.un.org/Depts/los/clcs_new/clcs_home.htm, last visited 01/09/2020. 110 Surya P. Subedi, “Problems and Prospects for the Commission on the Limits of the Continental Shelf in Dealing with Submissions by Coastal States in Relation to the Ocean Territory beyond 200 Nautical Miles”, The International Journal of Marine and Coastal Law, vol. 26, 2011, pp. 413-431, p. 423. 79

Implementation of Part XI of the UNCLOS111. The ISA is the organization through which states should, under the regime of the Area, organize and control activities there. In particular, to administer the resources of the Area.112

The ISA’s competence does not include submarine cables matters. However, intersections with seabed activities in the Area regulated by the ISA and submarine cables may arise in practice. The ISA cooperates with the International Cable Protection Committee (ICPC)113 on the issue of submarine cables. Some joint documents have been issued by these two institutions114. The status and the role of the ICPC in regulating submarine cables are discussed below.

3. Specific governance of submarine cables: the International Cable Protection Committee

The governance of submarine cables as an area with unique characteristics is addressed in this sub-section through the concept of global governance formulated earlier in this chapter, followed by the status and role of the ICPC as a central submarine cable regulator nowadays. a. The legal nature of the ICPC

The ICPC was founded in 1958 under the name Cable Damage Committee. The name was changed in 1967 to better reflect the

111 Agreement relating to the implementation of Part XI of the UN Convention on the Law of the Sea of 10 December 1982, Doc. A/RES.48/263, concluded in New York 28 of July 1994, entered into force 16 November 1994, UNTS, vol. 1836, p. 3. 112 ISA website, section “About the International Seabed Authority”, https://www.isa.org.jm/authority, last visited 01/09/2020. 113 See the ICPC website, available at https://www.iscpc.org, last visited 01/09/2020. 114 See, for instance, Memorandum of understanding between the ICPC and the ISA, signed on behalf of the ICPC 25 of February 2010, by the ISA 15 of December 2009, available at https://www.isa.org.jm/sites/default/files/documents/EN/Regs/MOU- ICPC.pdf, last visited 01/09/2020. 80 purposes of the entity115. Therefore, currently the ICPC is operating under the name ICPC Ltd as a non-profit corporation headquartered in the United Kingdom116. In concrete, the ICPC itself is a private members’ association managed by the ICPC Ltd as a non-profit corporation117. It is a private company and its activities are regulated by the domestic law of the United Kingdom. This feature one more time emphasizes the non-standard mode of submarine cables governance.

Notwithstanding its private nature the ICPC is widely recognized as an international forum bringing together representatives from different countries including telecommunications companies, governments, and scientific community118. It is a voluntary organization, representing members operating under the rule of international law119. The primary objective of the ICPC is to protect submarine cables from human activity and natural disasters and to ensure safe and effective use of submarine cables. To perform its functions, the ICPC has an exclusive database for its members (the ICPC Members Database) providing collection of the most relevant and updated information on submarine cables120.

In the area of submarine cables, the ICPC is the only authority entirely designed for cable regulation nowadays and is considered as an important actor in submarine cables community. Insomuch as there is no specifically established international organization responsible for submarine cables neither in the system of the UN

115 ICPC website, section “ICPC History”, available at https://www.iscpc.org/about-the-icpc/history/, last visited 01/09/2020. 116 See ICPC Membership Agreement, available at https://www.iscpc.org/documents/?id=12, last visited 01/09/2020. 117 See “Whereas” section of the ICPC Membership Agreement, available at https://www.iscpc.org/documents/?id=12, last visited 01/09/2020. 118 As of September 2020, more than 170 participants from over 60 countries are members of the Committee. See ICPC website, section “About the ICPC”, available at https://www.iscpc.org/about-the-icpc/, last visited 01/09/2020. 119 R. Wopschall, “The Outer Side of Communication: Guardians of Global Connectivity”, The Fletcher Forum of World Affairs, vol. 41, Issue 1, 2017, pp. 49-58, p. 55. 120 Upon request to the ICPC, the author was given an access to this database which guarantees that information taken from this database and used in the present work is completely relevant and up to date. 81 and its supplementing bodies nor among independent international organizations, the ICPC took a role and initiative of collecting materials and proposing solutions for some technical and legal problems.

The ICPC is a private company and it operates as a forum for policymakers, civil servants, cable companies’ representatives and scholars where they discuss current issues. Recently a great amount of private companies acquired political significance and transformed itself into real regulative institutions holding powers of public authorities121. From the perspective of submarine cables, it is worth examining the nature of the ICPC as a non-state actor exercising functions of public authority and to see how organizations not covered by the definition of international organization influence submarine cable regulation. It demonstrates that institutions based on private law or having mixed (private and public) nature, lacking any relevant delegation of authority may exercise activities of public interest in a similar way to those based on the proper delegation of authority122. In particular, recommendations of the ICPC appear to work in practice and representatives of the cable industry tend to implement them. This might be concluded from a significant number of cable companies having permanent membership in the ICPC123.

The role of non-state actors in the field of submarine cables is essential. First of all, of the International Cable Protection Committee exercising transnational governance of particular public significance and as a consequence, of regional cable protection committees such as, for instance, North American Submarine Cable Association (NASCA)124, European Subsea Cables Association

121 J. Ibàñez, El control de internet, Madrid: Catarata, 2005, p. 92. 122 Ibid, p. 108. 123 ICPC website, section “Members List”, available at https://www.iscpc.org/about-the-icpc/member-list/, last visited 01/09/2020. 124 North American Submarine Cable Association (NASCA) website, available at https://www.n-a-s-c-a.org/, last visited 01/09/2020. 82

(ESCA) (former UK Cable Protection Committee)125 and Danish Cable Protection Committee (DKCPC)126. b. The status of the ICPC under international law

Notwithstanding functions and competencies of the ICPC similar to powers of an international organization, it does not satisfy the definition of an international organization under international law reading as follows:

“international organization” means an organization established by a treaty or other instrument governed by international law and possessing its own international legal personality. International organizations may include as members, in addition to States, other entities”127.

This definition includes three criteria to be further analyzed in the case of the ICPC to decide whether each element is satisfied by this institution. i. International organization is an entity established by a treaty or other international agreement under international law

The classic international organization is established by an international agreement governed by international law and ratified by states. Rarely international organizations are created by governmental consensus reached in the framework of the international conference. The ICPC was registered as a private legal entity from the very beginning and states did not have any relation to its appearance. There was no international conference between states, and the ICPC emerged as a private initiative. Occasionally an international organization can be established by the decision of another

125 European Subsea Cables Association website, available at http://www.escaeu.org/, last visited 01/09/2020. 126 Website of Danish Cable Protection Committee (DKCPC), available at http://www.dkcpc.dk/sider/vedtagt.asp, last visited 01/09/2020. 127 Draft Articles on the responsibility of international organizations, Yearbook of the International Law Commission, 2011, vol. II, part 2, Article 2 (a), available at http://legal.un.org/ilc/texts/instruments/english/draft_articles/9_11_2011.pdf, last visited 01/09/2020. 83 international organization.128 However, it is also not the case of the ICPC. From this criterion, the ICPC is considered as a non- governmental organization registered and subject to a domestic legal order. ii. International organization is capable to generate an autonomous will through its organs, and this will is distinct from the will of its members

The second element of the international organization is that it should have its own legal personality and be able to take independent decisions through its organs. These organs are capable to act on behalf of the organization, and their decisions differ from individual decisions of members of international organization129. The ICPC has regular plenary meetings, full contractual capacity representing itself and not acting on behalf of its members. Regular plenary meetings of the ICPC are held every year and are similar to meetings within a structure of the govermental international organization. iii. International organization has a membership

Members of international organizations are subjects of international law having a capacity to conclude international treaties. Usually members of international organizations are states. However, it is not the case of the ICPC. According to the ICPC Membership Agreement, membership is available for submarine cable owners, submarine cable maintenance authorities, submarine cable system manufacturers, cable ship operators, submarine cable route survey companies, and governments130. The plurality of subjects involved in submarine cables governance one more time specifies the complex nature of the submarine cables legal regime. c. The role of the ICPC in submarine cables regulation

128 K. Schamalembach, “International Organizations or Institutions, General Aspects”, MPEPIL, 2014, section 2, available at http://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law- 9780199231690-e499?rskey=IeFt9T&result=8&prd=EPIL, last visited 01/09/2020. 129 K. Schamalembach, “International Organizations…”, op.cit., section 2. 130 See section 2.1 of the ICPC Membership Agreement, available at https://www.iscpc.org/documents/?id=12, last visited 01/09/2020. 84

The ICPC’ activity in practice appears to be vastly similar to activities of international organizations. It develops and publishes recommendations on important issues such as route planning, laying, maintenance, and protection of submarine cables. However, its decisions are non-binding and the ICPC does not address local cases. Instead its focus is general recommendations. Other ICPC’s activities include share of legal information about submarine cables systems, response to general inquiries on matters relating to international law, environmental issues concerning submarine cables, monitoring of emerging legislation, and providing information necessary to protect submarine cables131.

The ICPC Competition Law Code of Conduct includes, for instance, that members of the ICPC during the sessions of the Committee and within the ICPC in general cannot discuss prices, capacity or services offered by their cables, construction costs, prices to be paid for the purchase with regard to cable systems, business strategies such as intention to establish new cables, intentions to decommission or withdraw cables from use or decrease their capacity, investments or technical developments and other issues132. It allows assuming that the Committee exists not as a platform for doing business and meeting potential business partners but for facilitating the development of regulation in the area of submarine cables. The Committee’s position itself as an “international submarine cable authority providing leadership and guidance on issues related to submarine cable security and reliability”133 confirms this suggestion.

The ICPC also has working relations with international organizations in the system of the UN, such as the United Nations Environment Programme (UNEP), ISA, with ITU and Telecommunications Standardization Bureau134. One more aspect similar to the nature of

131 ICPC website, section “About the ICPC”, available at https://www.iscpc.org/about-the-icpc/, last visited 01/09/2020. 132 Competition Law Code of Conduct of the ICPC, Annex 2, available at https://www.iscpc.org/documents/?id=7, last visited 01/09/2020. 133 ICPC website, section “ICPC Vision Statement”, available at https://www.iscpc.org/about-the-icpc/vision-statement/, last visited 01/09/2020. 134 ICPC website, section “ICPC Achievements”, available at https://www.iscpc.org/about-the-icpc/achievements/, last visited 01/09/2020. 85 an international organization is the ICPC’s financial resources consisting of fees of its members aimed at implementing its goals.

Acting in a de facto international organization’s capacity, the ICPC, for instance, requested the U.S. Navigation Safety Advisory Council to consider amendments to the Convention on the International Regulations for Preventing Collisions at Sea 1972 (“COLREGs”)135 to reduce collisions at sea between cable ships and cable repair buoys with other vessels136.

Apart from flexibility and faster reaction to changes offered by non- governmental institutions such as the ICPC, there are also existing disadvantages. They include, for instance, mistrust from official institutions and possible actions in the sole interest of shareholders of such non-governmental institutions. However, these disadvantages appear to be non-applicable with regard to the ICPC. Precisely, due to the fact that the ICPC convenes representatives from different fields, professional capacity and status meaning that usually they have distinct opinions. There is a low possibility that a decision would be made unanimously considering the plurality of actors and their affiliations involved in the ICPC. Furthermore, if the model of non-governmental institutions works, more detailed attention should be given to it in international law in general. A certain freedom to entrust those spheres which are better regulated by informal instruments is needed in international law. Especially in the field of submarine cables and with the possible extension of the positive experience to other branches of international law.

In this chapter the characteristics of submarine cables as an object of legal regulation are considered from different perspectives. These findings constitute a basis for the analysis of their legal regime as discussed in detail in chapters IV, V and VI.

135 Convention on the International Regulations for Preventing Collisions at Sea (COLREGs), concluded 20 of October 1972, entered into force 15 of July 1977, 1050 UNTS 16. 136 ICPC website, section “ICPC Achievements”, available at https://www.iscpc.org/about-the-icpc/achievements/, last visited 01/09/2020. 86

CHAPTER III THE ORIGIN AND FIRST ATTEMPTS TO REGULATE SUBMARINE CABLES IN INTERNATIONAL LAW

The current international law does not offer a specific convention related to submarine cables collecting all provisions into a single document, signed by a large number of states and widely recognized in the international community. In the meantime, it offers several legal instruments regulating various aspects of submarine cables with the UNCLOS as the primary source. This chapter aims to give a brief history of submarine cables industry development and analyze the role of first international law instruments which put this activity under control for the subsequent development of submarine cables legal regime. The analysis consists of two aspects. The first includes the origin of submarine cables. The second examines first attempts for submarine cables regulation and the status of international agreements in modern international law.

A) THE ORIGIN OF SUBMARINE CABLES

Submarine cables’ communications era began more than one hundred and fifty years ago and simultaneously started the history of their legal regulation. First submarine cables appeared in the mid- nineteenth century. Since the 1840s, United Kingdom had begun laying telegraph cables along the bottom of rivers in water areas of ports that allowed transmitting data from one coast to another and made communications between port services easier1. Those times cables had limited length, restricted capacity, and short lifespan compared to modern technologies of cable construction. Presently cables are laid across thousands of kilometers, and the average lifetime of a submarine cable in service is now amounts between twenty and twenty-five years2.

1 M. Graham, L. Carter, D. Burnett, “About Submarine Power…”, op.cit., p. 3. 2 L. Carter, D. Burnett, S. Drew, G. Marle, L. Hagadorn, D. Bartlett-McNeil, and N. Irvine, “Submarine Cables and the Oceans…”, op.cit., p. 24; D. Burnett, R. Beckman, T. Davenport, Submarine Cables: The Handbook… op. cit., p. 213. 87

First submarine cables were used in few places at the very beginning. Due to the limited capacity, they were laid on short distances and could connect only two states located nearby. Submarine cables served for local connections and did not have a universal value they possess nowadays when connecting several countries.

The cable connecting the United Kingdom and France was the first international telegraph cable3. Since that moment, submarine cables industry had moved beyond national boundaries and acquired international significance. In 1858 there was a new milestone in the history of submarine cables construction. First transatlantic cable was laid across the ocean and connected Ireland with the island of Newfoundland in the north-eastern coast of North America. However, after twenty-six days of work, it had stopped transmitting signals and the following cable which further replaced the old one was laid only in 1866, eight years later4. Meanwhile, cables serving for states’ individual needs within internal waters had been continuing to be laid. For instance, the first Russian submarine communications cable which crossed the seabed was two hundred and fifty-kilometer- long line, connecting Baku and Krasnovodsk on the Caspian Sea in 18795. Simultaneously the first submarine telephone cable (in the circumstances of increasing development of telephony) was laid in 1884 between San Francisco and Oakland6. In 1891 submarine telephone cable was also laid by British Post Office across the English Channel7.

3 D. Burnett, R. Beckman, T. Davenport, Submarine Cables: The Handbook…, op. cit., p. 20. 4 L. Carter, G. Marle, D. Burnett, “About Submarine Telecommunications Cables”, International Cable Protection Committee materials, 2011, pp. 1-52, p. 3, available at https://www.iscpc.org/documents/?id=1753, last visited 01/09/2020. 5 E. Guseva, “History of underwater cable construction” (История подводного кабелестроения), in Russian, Cable-news, vol. 4, 2010, pp. 78-87, p. 84, available at http://www.ruscable.ru/print.html?p= /article/Istoriya_podvodnogo_kabelestroeniya/, last visited 01/09/2020. 6 L. Carter, G. Marle, D. Burnett, “About Submarine Telecommunications…”, op.cit., p. 4. 7 D. Burnett, R. Beckman, T. Davenport, Submarine Cables: The Handbook…, op. cit., p. 28. 88

Signal transmission speed along cables was relatively low and the cost of calls, on the contrary, was exceedingly high those times. It is explained by imperfect technologies and especially by the fact that copper was the main material while modern cables contain fibre in its core that allows transmitting information on many kilometers in a matter of seconds. In comparison, a cable laid in 1866 was able to transmit only seven words per minute at twenty pounds for twenty words8. Cables appeared in the 20th century already could transmit forty thousand calls simultaneously.

Modern fibre optic cables carry millions of phone calls to thousands of kilometers as well as huge volumes of video, photos, and other Internet traffic. The reason is not only the structure of modern fibre optic cables but also the invention of special amplifiers in the 1940s (the “repeaters”) helping to keep signal strong9. In the process of transmission signal loses its power and modern fibre optic cables contain amplifiers allowing the signal to be maintained and transmitted unchanged over long distances for thousands of kilometers of cable lines. Furthermore, due to the small size of modern cables (a few centimeters in diameter) the speed and power of the signal is easier to maintain as it is transmitted in a small, limited space. It also reduces transportation costs.

Since the 60s of the 20th century, the era of high-quality global communications began. With the development of Internet and increased flows of information, the need to transmit big data over long distances in a short period had gradually increased. In 1986, the first fibre optic cable connecting the United Kingdom and Belgium was laid, and in 1988 the first trans-oceanic fibre optic cable between

8 L. Carter, G. Marle, D. Burnett, “About Submarine Telecommunications…”, op.cit., p. 13. 9 D. Burnett, R. Beckman, T. Davenport, Submarine Cables: The Handbook…, op. cit., p. 30. 89 the United States, Great Britain, and France10 announced the beginning of new era of communications.

B) FIRST ATTEMPTS TO REGULATE SUBMARINE CABLES IN INTERNATIONAL LAW

With the invention of cables themselves various questions related to legal aspects of their laying, repairing and protection appeared. For instance, in times when cables had only local significance and connected parts of one state, there were no questions concerning the right to lay submarine cables or concerning jurisdiction and liability. Since cables were laid in internal sea waters (territorial sea in the modern law of the sea language), there were no matters involving foreign elements and all issues were regulated by domestic legislation. Once the technology allowed laying fibre optic cables thousands of kilometers offshore and through territorial sea and continental shelf of other states, as well as in the high seas or international seabed area issues related to legal regime of such cables appeared. Besides, problems of damage to submarine cables and liability for damage caused to the owner of a cable emerged: who should be considered liable for cable break and how the amount of damage should be counted. In the late 19th century already, several submarine telegraph cables in the North Sea had been inadvertently damaged by fishing vessels, which led to complaints from British cable companies to the government11.

Progressively more and more issues appeared in practice. Among them are questions concerning the priority of marine spaces use for competing activities. In other words, issues of joint rational use of oceans for the purpose of fishing, shipping, navigation, exploitation of seabed resources of the continental shelf, and laying of submarine cables, without prejudice to other types of activities.

10 L. Carter, G. Marle, D. Burnett, “About Submarine Telecommunications…”, op.cit., p. 4. 11 L. Renault, “The protection of submarine telegraphs and the Paris Conference (October – November 1882)”, Brussels and Leipzig International Law in Review, Brussel: Merzbach and Falk Publishers, 1884, pp. 2-23, p. 4. 90

These and several other problems made it necessary to undertake regulatory activities related to submarine cables. Not only at national stage but also on the international level because cables have literally gone beyond the territories of states and acquired international significance. Therefore, since the 19th century, states began to develop regulatory tools for a new ocean use titled laying of submarine cables following the principle adopted by the ILC that all states have the right to lay submarine cables on the high seas12.

1. The 1884 International Convention for the Protection of Submarine Telegraph Cables

The first international convention in the history of international law regulating legal aspects of submarine cables appeared in 1884 when several states concluded International Convention for the Protection of Submarine Telegraph Cables (the “1884 Convention”)13. The initiative of creating an international instrument of cable regulation belonged to the United States of America that in 1860 proposed to develop and adopt a relevant convention14. In particular, it was suggested to establish the same punishment for intentional acts of damage to submarine cables as for acts of piracy15 since cable damages were already of high international concern that time.

After this proposal, the question of adopting a new convention was considered in the scope of the International Law Institute (ILI) that confirmed a great importance of the international legal regulation of submarine cables for cable industry. However, the provision proposed by the United States regarding equating the acts of damage

12 R. Dupuy, D. Vignes, A Handbook on the New Law of the Sea, Dordrecht/Boston/Lancaster: Martinus Nijhoff Publishers, vol. II, 1991, p. 978. 13 International Convention for the Protection of Submarine Telegraph Cables 1884, concluded in Paris 14 of March 1884, entered into force 1 of May 1888, 163 CTS 391 [French]. It is worth noting that this Convention was concluded in the 19th century and there were no other types of cables but telegraph cables. 14 R. Dupuy, D. Vignes, A Handbook on the New Law…, op.cit., p. 977. 15 D. Colombos, The International Law…, op.cit., p. 333. 91 to cables to the acts of piracy, was not supported16. Even after the authoritative opinion of the ILI, an international agreement has not been signed.

The issue remained unresolved until 1882 before France took the initiative to summon a special conference17. The outcome of the conference was a signature of the International Convention for the Protection of Submarine Telegraph Cables in 1884 by twenty-six states. It was later amended by the 1886 Declaration on the Protection of Submarine Cables and the 1887 Protocol on the Protection of Submarine Cables18.

The primary purpose of the 1884 Convention was to encourage states to adopt national laws on submarine cables since at that time already it became clear that a sufficient number of factors threaten their stable operations. It was also recognized that submarine cables cannot be fully regulated only on the level of international law and that national implementation was required. Thus, the lawmakers of the 1884 Convention attempted to draft a comprehensive agreement dedicated to submarine cables and balancing the interests of cable owners with other actors conducting activities in the oceans. a. The material scope of the 1884 Convention

The 1884 Convention established several obligations for states in relation to submarine cables: the obligation not to cause damage to submarine cables, the obligation to maintain a distance from installed

16 T. Davenport, “Submarine Cables: Problems in Law and Practice”, Article submitted for the Rhodes Academy Submarine Cables Award, 2010, Centre for International Law (sponsored by the International Cable Protection Committee), pp. 1-42, p. 39. 17 D. Colombos, The International Law…, op.cit., p. 334. 18Submarine Cables and Deep Seabed Mining. Advancing Common Interests and Addressing LOSC “Due Regard” Obligations, Technical Study: No. 14, International Seabed Authority, 2015, p. 24, available at https://www.isa.org.jm/sites/default/files/files/documents/techstudy14_web_27 july.pdf, last visited 01/09/2020. 92 submarine cables and the obligation to receive permit from a coastal state for laying submarine cables.

1) Obligation not to cause damage to submarine cables

The most important provision of the 1884 Convention concerned the protection of submarine cables. This might be concluded from the reflection of this issue in the second article of the 1884 Convention, directly after the territorial applicability clause. Article 2 stated as follows:

“It is a punishable offence to break or injure a submarine cable, wilfully or by culpable negligence, in such manner as might interrupt or obstruct telegraphic communication, either wholly or partially, such punishment being without prejudice to any civil action for damages.”

Article 2 consolidated that break or injury to submarine cables should be considered as a punishable offense. At the same time, Article 2 also affirmed that the act of damage to submarine cables should not apply to any break or injury caused unintentionally and with the legitimate purpose of saving lives onboard or vessel itself if the crew took all necessary precautions to avoid such break or injury. This wording reflecting a balance of competing interests in using the oceans was necessary and adequate.

In continuation of this provision, Article 4 established a liability for a cable owner who in the process of laying or repairing his cable damaged another cable. If such an act was intentional or caused by negligence, the owner was subject to costs of repair but not to payment of any lost profit thereof. The reference was made to Article 2 with regard to exceptions when the costs of repair should not be paid. In that case, the same rule applies: if the owner took all necessary precautions to avoid such break or injury or was saving lives onboard of his vessel when damaging a cable then such owner should not be liable for cable damage.

Simultaneously, the convention foresaw the opposite situation when a cable was damaged, but the owner should not be liable for such damage. Article 7 prescribed that if the owner of a vessel could

93 prove that he has sacrificed an anchor, net, or any other equipment used in fishing, the owner shall indemnify such vessel from the liability for damage. However, to be indemnified, the fact of damage must be confirmed by one of the members of the crew upon arrival to the nearest port before the competent port state authorities. Such competent authorities shall report the incident to the state to which a cable owner belongs through diplomatic channels.

2) Obligation to maintain a distance from a cable

The 1884 Convention covered the matter of safety of vessels engaged in cable laying or repairing operations. In particular, Article 5 indicated that when a cable ship is involved in activities of laying or repairing cables and operates with specific signals, other vessels observing or having an opportunity to see these signals must either retire or maintain at least one nautical mile distance from such vessel as not to impede its work19. This obligation was required due to unfamiliarity of the shipping industry with features of cable-related works characterized by slow movements of a cable ship and its restrictions in the ability to maneuver. Therefore, this provision with minimum distance was included in the text.

19 Currently, the UNCLOS does not contain this provision in its text and incidents regularly happen when other vessels (mostly small fishing boats since large vessels prefer to keep a distance to repairing ship as it is considered dangerous for both vessels) interfere with the operations taken by cable ship. A minimum distance which shall be kept by vessels is not established in the national legislation of states – parties to the UNCLOS as well. Among few exceptions is Iceland. It provides that the ship must hold a distance of a quarter of a mile (463 meters) from the vessel engaged in laying or repairing submarine cable (See Electronic Communications Act No. 81, adopted 26 of March 2003, entered into force 25 of July 2003, Iceland, EEA legislation: Annex XI, Regulation 2887/2000/EC, Directives 1999/5/EC, 2002/19/EC, 2002/20/EC, 2002/21/EC, 2002/22/EC, 2002/58/EC and 2002/77/EC, Article 71). France provides with the same distance (See Code of Postal and Electronic Communications, adopted 4 of March 1952, published in Official Journal of the French Republic, France, 2004, Chapter 5, Sec. 2, Article R 46 20). The rule of keeping a distance also applies to buoys designed to show the position of cables. All the surrounding vessels shall keep the distance from them in accordance with Article 6. In this case the distance shall be a quarter of mile. 94

3) Obligation to receive a permit from coastal states

The 1884 Convention also covered a safety matter of submarine cables by giving the right to states in which jurisdiction they were planned to be laid, to grant consent and issue a permit for landing cables and to “insist, as far as possible <…> upon suitable conditions of safety”20. By the category of safety, the track of a submarine cable and its dimension were covered. Article 3 did not specify how specifically and to what extent states should “insist” on the above-mentioned conditions of safety. It appears that they could have the right to adopt national legislation devoted to this matter. This article referred only to states that “shall authorize the landing of a submarine cable”. It means those where a submarine cable comes ashore, literally to the land and where it has a landing station. Meanwhile, states through which maritime zones a cable should pass were not mentioned since at that time maritime zones existing nowadays were not yet covered by the international law of the sea.

The 1884 Convention also contained some other provisions currently not reflected in the UNCLOS. For instance, the right of states to visit other parties’ vessels suspected of offences under the 1884 Convention. In particular, in a cause of damage to submarine cables21. The UNCLOS includes similar norms but in relation to a certain maritime area and not to submarine cables specifically22. Finally, only articles 2 and 4 from the 1884 Convention were

20 International Convention for the Protection of Submarine Telegraph Cables 1884, Article 3. 21 International Convention for the Protection of Submarine Telegraph Cables 1884, Article 10. 22 For example, Article 220 states that if there are clear grounds to suppose that a vessel has violated laws and regulations of a coastal state established in the exclusive economic zone or in the territorial sea, a coastal state may undertake physical inspection of the vessel relating to the violation. See Article 220, paragraphs 2 and 5. 95 included in the Convention on the High Seas23 and subsequently to the UNCLOS24. b. The applicability of the 1884 Convention

In accordance with Article 1, the 1884 Convention applies to maritime areas outside territorial waters to all validly laid submarine cables on the territory of any of the contracting parties. In terms of the contemporary law of the sea, the concept of territorial waters is covered by the notion of territorial sea25. Maritime areas presently reflected in the UNCLOS appeared later, and in the times of the 1884 Convention, the structure of maritime areas was different.

With regard to the protection of cables in territorial waters, the 1884 Convention did not consider this maritime space. However, it was compensated by the regulation in domestic law26. For instance, in the United Kingdom, the convention was enacted by the 1885 Submarine Telegraph Act27 where Article 11 established that the Act applies to all possessions of Her Majesty and all the territories where Her Majesty has jurisdiction including internal waters. This Act established penalties for an intentional or negligent break or damage to submarine cables.

23 Convention On the High Seas, concluded in Geneva 29 of April 1958, entered into force 30 of September 1962, UNTS, vol. 450, p. 11. 24 A. Proelss, United Nations Convention on the Law of the Sea: A Commentary, Edition 1, Leiden: Beck/Hart/Nomos, 2017, p. 621. 25 See Articles 2, 3 and 4 of the UNCLOS addressing the territorial sea. 26 The protection of submarine cables is an important issue. Therefore, the UNCLOS in Article 113 still has a provision obliging states to include in their national legislation rules qualifying damage to submarine cables as punishable offense (unless cable was damaged in circumstances of saving lives or vessel with taking all necessary and reasonable measures in advance). 27 Submarine Telegraph Act, Regnal 48 and 49 Vict. United Kingdom, 1885, available at http://www.legislation.gov.uk/ukpga/1885/49/pdfs/ukpga_18850049_en.pdf, last visited 01/09/2020. 96

The 1884 Convention distinctly established jurisdiction and courts responsible for solving cases. Article 8 outlined the courts entitled to resolve disputes arising out of the 1884 Convention. According to it, courts of states having jurisdiction on vessels on board of which the infraction has been committed are competent courts where disputes should be resolved. The 1884 Convention also provided an alternative option. Article 8 continued that assuming there is no possibility to follow the first scenario, the trial can take place in any of the contracting parties in accordance with its internal procedural rules. In this case, prosecutions on matters of willful damage to submarine cables, breach of the rules regarding a distance from the vessel engaged in laying or repairing operations (in accordance with Article 5), or rules relating to keeping a distance from buoys indicating positions of cables shall be instituted by states or in their name28.

It is worth noting that 1884 Convention in Article 15 directly provided that its provisions apply only in peaceful time. In the case of war all rules are not applicable, and a belligerent state may easily abstain from them29. One more limit of the convention is its title saying for itself and extending its legal force only to telegraph cables.

2. The 1958 Geneva Convention on the Continental Shelf

After the adoption of the 1884 Convention international standards on submarine cables remained unchanged for a long period. In 1958 two new international agreements were adopted: Geneva Convention on the High Seas and Geneva Convention on the

28 For the breach of the same provisions the following punishments are foreseen: fine or imprisonment, or both, in accordance with Article 12. The 1884 Convention allowed joining the convention for subsequent participants. 29 The UNCLOS being concluded in post-world war period apparently does not include this provision. 97

Continental Shelf30, governing various aspects of the law of the sea. They also contained some provisions relating to submarine cables31. It is worth mentioning that the preliminary work on submarine cables regulation before the adoption of these conventions was done by the ILC which in 1956 issued Articles concerning the Law of the Sea with commentaries. This document contained a reference addressing submarine cables and pipelines on the continental shelf and the high seas together32. They were later split between Geneva Convention on the Continental Shelf and Geneva Convention on the High Seas where each convention contained its own article regarding submarine cables on the continental shelf and in the high seas, respectively. Therefore, since the adoption of the Geneva conventions submarine cables are considered in each maritime space separately. This approach is currently followed by the UNCLOS. a. Appearance of the new maritime zone affecting submarine cables

The terms “continental shelf” and “its resources” had not been used in the international law of the sea until they became widely known after the 1945 Truman Proclamation where the United States declared that all natural resources of the continental shelf are

30 Convention on the Continental Shelf 1958, concluded in Geneva 29 of April 1958, entered into force 10 of June 1964, 15 UST 471; 499 UNTS 311. 31 These conventions were addressed not only to telegraph cables but covered all other types of cables (fibre optic cables, predominantly) since both use term "submarine cables" and do not specify telegraph cables or any other cable type. Change of terminology has been associated with the development of information technologies, namely, the increasing value of telephone connections and creation of the Internet. The story of Internet begins in early 1960th. However, first computers connected to the worldwide web (more precisely, its predecessor APRANET) appeared in 1950th already. Moreover, on January 31, 1958 the United States launched its first satellite and even before this event the Soviet Union put its satellite called Sputnik to the orbit on 4 October 1957. See J. Gillies, R. Cailliau, How the Web was Born: The Story of the World Wide Web, New York: Oxford University Press, 2000, p. 11. 32 Articles concerning the Law of the Sea with commentaries 1956, op.cit., Article 70. 98

“subject to its jurisdiction and control”33. After this announcement, several other states consequently followed the United States’ example and claimed their rights over their continental shelves respectively34. Such claims over continental shelves have jeopardized the possibility to lay new submarine cables due to the following reasons.

In the framework of the Geneva Convention on the Continental Shelf a new rule relating to submarine cables laid on the continental shelf appeared. Maritime zones that became considered as a continental shelf, had previously been included in the notion of the “high seas”, the area not subject to any state’s jurisdiction, reserved for peaceful purposes, and providing free access for its resources for either coastal and land-locked states. When the continental shelf concept emerged as an international legal institution, these maritime zones appeared to be under the sovereignty of coastal states35. Such states received the right to explore and exploit natural resources of the continental shelf at their own discretion, including possible interference in processes of laying submarine cables carried out by other states. Furthermore, the continental shelf was assigned to coastal states automatically, without the need to make a special announcement or declaration36. Also, the convention specifically mentioned that even if a coastal state does not explore or exploit its continental shelf, no other state may claim using it without the prior express consent of such coastal state37.

33 See Presidential Proclamation 2667 “Policy of the United States With Respect to the Natural Resources of the Subsoil and Sea Bed of the Continental Shelf”, September 28, 1945. 34 J. R. Coquia, “Development and Significance of the 200-Mile Exclusive Economic Zone”, Philippine Law Journal, vol. 54, Issue 4, 1979, pp. 440-448, p. 441. 35 Article 2, paragraph 1 of the Convention on the Continental Shelf 1958 states that “The coastal State exercises over the continental shelf sovereign rights for the purpose of exploring it and exploiting its natural resources”. 36 See Article 2, paragraph 3 of the Convention on the Continental Shelf 1958. 37 See Article 2, paragraph 2 of the Convention on the Continental Shelf 1958.

The sovereignty received by coastal states over new areas of their continental shelves could not remain unlimited. Therefore, Article 4 restricting the sovereignty in relation to submarine cables was included in the convention. b. Concept of reasonable measures in the law of the sea

Article 4 of the Convention on the Continental Shelf reads as follows:

“Subject to its right to take reasonable measures for the exploration of the continental shelf and the exploitation of its natural resources, the coastal State may not impede the laying or maintenance of submarine cables or pipelines on the continental shelf”.

The main purpose of this provision was to prevent states’ actions impeding laying and maintenance of newly laid or already existing submarine cables if these actions do not interfere with the right to explore resources of the continental shelf. Nonetheless, it appears that coastal states possess the power to limit cable laying if it intersects with such coastal states’ activities on the exploration of the continental shelf. The extent and nature of exploration activities and type of interference that might be caused by laying a new cable remains an open question. Potentially it can lead to conflicts between coastal state interests and interests of cable companies laying submarine cables on its continental shelf.

Article 4 of the Convention on the Continental Shelf did not define “reasonable measures” which coastal state may take for the exploration and exploitation of its continental shelf and its natural resources. Consequently, disputes concerning validity and reasonableness of coastal state environmental requirements in respect to the construction of submarine cables (as such requirements are frequently found in the national legislation of states) are inevitable. For instance, Federal Law On the Continental Shelf of the Russian Federation provides that laying of submarine cables on the continental shelf is subject to state ecological

100 expertise38. The ecological expertise itself is carried out in accordance with Federal Law On Environmental Impact Assessment39 and should be performed under its rules. In particular, the ecological expertise should be carried out within a period not exceeding three months. This limit may be extended to one more month at the request of the applicant40. Environmental impact assessment is also required in Singapore41.

Ecological requirements significantly delay the process of obtaining permissions for construction of submarine cables although in scientific literature and in the framework of international organizations it is recognized that submarine cables do not cause damage and harm to the marine environment42. In contrast to submarine pipelines, that in the case of a break will inevitably provoke oil spill leading to an ecological disaster, submarine cables are not capable of causing such pollution. The UNCLOS specifically underlined in Article 79, paragraph 2 the “reduction and control of

38 Federal Law On the Continental Shelf …, op.cit., Article 31. 39 Federal Law On Environmental Impact Assessment, adopted 23 of November 1995 No. 174-FZ, first published in Collection of Legislative Acts of the Russian Federation, 1995, No. 48. 40 Federal Law On Environmental Impact Assessment, op.cit., Article 14, paragraph 4. 41 Guidelines For Submarine Cable Deployment into Singapore, IDA, 2010, paragraph 4.3, available at http://www.submarinenetworks.com/images/figures/GUIDELINES- SINGAPORE.pdf, last visited 01/09/2020. 42 See: L. Carter, D. Burnett, S. Drew, G. Marle, L. Hagadorn, D. Bartlett-McNeil, and N. Irvine, “Submarine Cables and the Oceans…”, op.cit., p. 11; E. Andrulewicz, “The Environmental Effects of the Installation and Functioning of the Submarine SwePol Link HVDC Transmission Line: A Case Study of the Polish Marine Area of the Baltic Sea”, Journal of Sea Research, vol. 49, 2003, pp. 337-345, p. 338; D. Burnett, D. Freestone, T. Davenport, “Submarine Cables in the Sargasso Sea: Legal and Environmental Issues in Areas Beyond National Jurisdiction”, Workshop Report at George Washington Law School, Washington D.C, 23 of October 2014, January 2015, pp. 2-43, p. 18, available at https://cil.nus.edu.sg/wp-content/uploads/2015/01/Submarine-Cables-in-the- Sargasso-Sea-Final-Workshop-Report-dated-16-January-2015-1.pdf, last visited 01/09/2020.

101 pollution from pipelines” abstaining from mentioning submarine cables.

As it was previously discussed, submarine cables are considered as an infrastructure that does not cause significant harm to the environment. They quickly integrate to marine seabed and after a short period such organisms as algae, sponges, and other microorganisms completely cover cables turning them into a part of the ocean floor. The process of cable laying including burying causes minimal damage to inhabitants of the ocean.

Before examining the notion of pollution in terms of applying to submarine cables, it is beneficial to consider the definition of pollution contained in the UNCLOS.

In accordance with Article 1 of the UNCLOS:

“pollution of the marine environment” means “the introduction by man, directly or indirectly, of substances or energy into the marine environment, including estuaries, which results or is likely to result in such deleterious effects as harm to living resources and marine life, hazards to human health, hindrance to marine activities, including fishing and other legitimate uses of the sea, impairment of quality for use of sea water and reduction of amenities”.

This definition does not comprise submarine cables since the damage to the environment coming from cables is minimal. This fact is widely recognized in scholarly works43. Also, the joint report of the UNEP and the ICPC emphasizes that “small size of telecommunications cables suggests that their environmental impact

43 See T. Davenport, “Submarine Cables…, op cit., p. 11; E. Perez-Alvaro, “Unconsidered Threats…”, op.cit., p. 61; M. Mudrić, “Rights of States regarding underwater cables and pipelines”, Australian resources and energy Law Journal, vol. 29, 2010, pp. 235–256, p. 249; E. Wagner, “Submarine Cables and Protections…”, op.cit., p. 240; Department of State Dispatch Supplement. vol. 6, No. 1, published by the Bureau of Public Affairs, United States, 1995, p. 9, available at http://dosfan.lib.uic.edu/ERC/briefing/dispatch/1995/html/Dispatchv6Sup1.ht ml, last visited 01/09/2020. 102 is mostly small and local <...> which has been confirmed by several studies”44.

Nevertheless, requirements for environmental impact assessment for pipelines and cables are oftentimes equal and do not specify any difference. In some states the procedure of obtaining approval for a planned submarine cable is not defined at all or is accompanied by a large number of formalities: there are no rules clearly specifying which authority is responsible for application submission, how application procedure is implemented, et cetera. Therefore, it contributes to a long process of agreement of a planned submarine cable with a coastal state. In legal literature, it is observed that the same problem is of current concern for submarine pipelines45.

Despite the ambiguity of reasonable measures to be taken by a coastal state, such an unclear wording was included intentionally due to impossibility to foresee all situations which may arise in practice. Reasonableness was the only criteria to address coastal states measures46. Thus, only practice of states and their reference to reasonable measures may give a general idea of this concept.

The Convention on the Continental Shelf played a significant role in establishing the modern legal regime of submarine cables. First, it created a new maritime zone existing nowadays where specific rules concerning laying of submarine cables apply. Second, it introduced the new concept of reasonable measures which was later included in the text of the UNCLOS and currently continues to influence the legal regime of submarine cables under the law of the sea.

3. The 1958 Geneva Convention on the High Seas

44 L. Carter, D. Burnett, S. Drew, G. Marle, L. Hagadorn, D. Bartlett-McNeil, and N. Irvine, “Submarine Cables and the Oceans…”, op.cit., p. 9. 45 See V. I. Gudkov, P. G. Lakhno, “International Legal Regulation of submarine pipelines construction”, Zakonodatelstvo, vol. 3, 2009, pp. 24-31. 46 A/ CONF.13/C.4/SR.26-30 (1958), OR VI, 73, 78 (27th Meeting, paragraph 28) (USA). 103

The Geneva Convention on the High Seas, by analogy with the Convention on the Continental Shelf, resolved legal issues associated with the processes of laying and maintaining submarine cables in the high seas. More precise, at the bottom of the high seas in the case of submarine cables. a. Introduction to the concept of respecting other uses of the seabed

A key innovation provided by the Geneva Convention on the High Seas was the definition of high seas formulated in Article 1 as follows:

“The term “high seas” means all parts of the sea that are not included in the territorial sea or in the internal waters of a State”.

In continuation, Article 2 and Article 26, paragraph 1 established the freedom to lay submarine cables in the high seas for any state respectively:

“The high seas being open to all nations <…>. Freedom of the high seas is exercised under the conditions laid down by these articles and by the other rules of international law. It comprises, inter alia, both for coastal and non-coastal States: (3) Freedom to lay submarine cables and pipelines”

“All States shall be entitled to lay submarine cables and pipelines on the bed of the high seas.”

Thus, large maritime areas appeared to be covered by the regulation of the Convention on the High Seas. That allowed giving legal protection to submarine cables as the convention extended its scope beyond the territorial sea to all ocean space47.

Although Articles 2 and 26 of the convention granted all states the right to lay submarine cables in the high seas, Article 26 simultaneously restricted this right by obliging them to respect and exercise reasonable regard to interests of other states exercising

47 M. Nordquist, S. Nandan, S. Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, Dordrecht, Boston and London: Martinus Nijhoff Publishers, vol. III, 1993, p. 262. 104 rights of freedom of the high seas on the same basis. In other words, it restricted states from privatizing the high seas for their own needs. In case of intersecting activities when submarine cables are planned to be laid in the same space where fishing, navigation, laying of pipelines, or overflight are exercised, a state planning to lay a cable should exercise reasonable regard to such actions. Usually, states decide the issue of competing activities by negotiations and compromise, but there is no international liability for non- cooperation. States can formally exercise reasonable regard but in reality, ignore other uses of the high seas to facilitate the development of their cable projects.

Article 26 paragraph 3 also specified that interests of states intending to lay a new cable are restricted by cables already in position and thus, the possibilities for repairing them should not be prejudiced. These provisions were not contained in the Geneva Convention on the Continental Shelf that highlights the specific role of the Convention on the High Seas. b. The role of national legislation in developing the legal regime of submarine cables

Article 27 introduced two new provisions that have not existed before. First, a duty for states to develop in their national legislation legal norms establishing responsibility for damage to submarine cables. Second, the possibility to obtain compensation. The article reads as follows:

“Every State shall have the necessary legislative measures to ensure that the owners of ships who can prove that they have sacrificed an anchor, a net or any other fishing gear, in order to avoid injuring a submarine cable or pipeline, shall be indemnified by the owner of the cable or pipeline, provided that the owner of the ship has taken all reasonable precautionary measures beforehand”.

These provisions were not included in the Convention on the High Seas accidentally. International law and international agreements are often formulated in general terms and do not contain specific mechanisms and instruments of regulation. They set an idea leaving

105 its implementation to the national legislation of contracting parties of the international agreement. In this case, international law provisions also tend to have a specific, detailed regulation in national legal systems.

A highly developed national legislation was adopted by several states where the area of legal regulation and protection of submarine cables remains to be a priority. These states not only introduced provisions of the Convention on the High Seas in their national law but also offered their instruments and legal mechanisms for the protection of submarine cables. In particular, a progressive legislation on submarine cables belongs to Australia and New Zealand. For example, their domestic law establishes protection corridors along the entire length of submarine cables prohibiting any commercial activity within its borders and ensuring constant monitoring radars in these corridors48. Successful experience of these and some other states on the implementation of international law provisions is discussed in more detail in chapter VI.

The idea of establishing legal norms in national legislation continues with Article 28 specifying that member states should provide necessary legislative measures aimed at the following. If a cable installer in the process of laying or repairing its cable caused a break or injury to another submarine cable, it shall bear the cost of repairs. Article 29 also stipulates for enacting national legislation with regard to indemnification of owners of ships who sacrificed an anchor or other fishing gear to avoid causing damage to submarine cable. However, this rule applies only if all precautionary measures were followed.

C) THE STATUS AND ROLE OF CONVENTIONS IN MODERN INTERNATIONAL LAW

48 Telecommunications and Other Legislation Amendment (Protection of Submarine Cables and Other Measures) Act, No. 104, 2005, Australian Government, available at https://www.legislation.gov.au/Details/C2005A00104, last visited 01/09/2020; Submarine Cables and Pipeline Protection Act, Public Act No.22, 16 of May 1996 (New Zealand). 106

Legal regime of submarine cables considerably evolved from the time it first appeared. Ideas formulated in the 1884 Convention as well as in Geneva Conventions were further developed and reflected in the UNCLOS. This section aims to analyze the current legal status of conventions and their role in shaping the modern submarine cables legal regime.

1. The legal status of conventions

From the international legal perspective, provisions of these conventions may apply on the basis of international law of treaties and on the basis of customary international law as discussed below. a. Under the law of treaties From the perspective of the international law of treaties, Article 30 (4) of the Vienna Convention on the law of treaties49 covers the case of correlation between the conventions and the UNCLOS where parties to the later treaty do not include all parties to the earlier one. For instance, the United States of America was a party to the 1884 Convention but is not a party to the UNCLOS. There is an additional condition that none of these conventions has been officially repealed. Thus, for states parties to both conventions the earlier treaty applies only to the extent that its provisions are compatible with those of the later treaty.

It might be the case of some provisions of the 1884 Convention not included in the text of the UNCLOS, but compatible with it. Among them is, for instance, Article 6 of the 1884 Convention providing that vessels shall keep a distance of at least one-quarter of a nautical mile from buoys indicating positions of cables. Article 5 also specifies that all other vessels shall keep a minimum distance of one nautical mile from a vessel engaged in cable repairs. The UNCLOS does not address such minimum distances in its text and potentially the distance of one quarter and one nautical mile as specified above

49 Vienna Convention on the Law of Treaties, concluded 23 of May 1969, entered into force 27 of January 1980, 1155 UNTS. 331, 8 I.L.M. 679. 107 should still be relevant. The same applies to Article 3 of the 1884 Convention prescribing that states shall authorize landing of a submarine cable in its maritime zones upon suitable conditions of safety. The UNCLOS does not specify conditions of safety under which new cables shall be laid. However, this overriding provision could also serve nowadays. Articles 12 and 13 are not reflected in the UNCLOS but are worth mentioning. According to them respectively, states shall propose to their relevant legislative bodies to secure the execution of the convention; and each state shall communicate to other parties of the convention laws that it has enacted in relation to the implementation of the 1884 Convention.

At the same time, some of the 1884 Convention’s provisions appear to be obsolete and should not apply in modern international law. For instance, Article 15 stating that “Convention shall in no wise affect the liberty of action of the belligerents”. Despite this provision is not included in the text of the UNCLOS, it does not remain in force since the law of war prohibits taking actions without the legitimate military objective.50 Therefore, submarine cables not serving exclusively for the needs of the belligerents (that appears to be rear situation considering international nature of submarine cables) cannot be cut or damaged nowadays.

The same applies to Article 1 referring to all legally established submarine cables landed in the territories, colonies, or possessions. Logically there are no colonies in the modern world as the current system of international law comprises independent sovereign states. That gives grounds to assume that this provision does not apply as well. Article 5 mentions telegraph ships not existing nowadays. Instead, modern cable ships responsible for repairing fibre optic cables operate worldwide. From this provision, it is also distinguishable that Article 5 although not mentioned in the UNCLOS, is not applicable. Furthermore, it might be argued that

50 See Additional Protocol to Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), UNTS vol. 1125 (p. 3), signed 12 of December 1977, entered into force 7 of December 1978, Article 52. 108 the 1884 Convention lost the object of its regulation. It is dedicated to telegraph cables not existing anymore since they were entirely replaced by modern fibre optic cables.

Generally, between a state party to both treaties (the 1884 Convention and the UNCLOS) and a state party to only one of the agreements, the treaty binding both states would govern their mutual rights and obligations. Therefore, since the majority of states in the world are parties to the UNCLOS and not to the 1884 Convention, in governing the relations between most of them the provisions of the UNCLOS predominantly apply.

With regard to 1958 Conventions, the matter of their legal force was resolved by the UNCLOS itself:

“This Convention shall prevail, as between States Parties, over the Geneva Conventions on the Law of the Sea of 29 April 1958”51.

Therefore, all states parties to Geneva Conventions were transferred to the jurisdiction of the UNCLOS because it received a higher status. However, states that decided not to join the UNCLOS, but ratified Geneva Conventions are still bound by their provisions to the extent of compatibility with the UNCLOS. b. Under customary international law

Another perspective is the applicability of the conventions due to their character of customary international law. It implies that provisions of the conventions may still apply if they have acquired such status52.

There is an ongoing debate on whether provisions of the 1884 Convention not included in the text of the UNCLOS are still in force. Some scholars argue that provisions of the 1884 Convention

51 UNCLOS, Article 311, paragraph 1. 52 It is the requirement of Article 38, paragraph 1 (b) of the Statute of the International Court of Justice which among the sources of international law lists international custom, as evidence of a general practice accepted as law. 109 constitute customary international law and are valid nowadays53. Other scholars suppose that they did not acquire the status of customary international law54. The author tends to join those academics suggesting that provisions of the 1884 Convention do not constitute customary international law due the following reasons.

First, they do not appear to be fundamental norms of the law of the sea which may be considered as constituting the general rule of law55. Second, there is no evidence that the 1884 Convention was widely applied in practice. A broad and unanimous application is questionable and not all participating states have adopted national laws to implement the convention’s provisions. Furthermore, it cannot be justified that the representative rate of the 1884 Convention was relevant. Fourty states signed this convention while, for instance, large Asia-Pacific region was represented only by two states: Australia and Japan. Although there is no certain amount or percentage required for the convention to be representative, the analysis in this case should be more qualitative than quantitative. As it was emphasized by the International Court of Justice (ICJ) in

53 See L. Henkin, A. F. Lowenfeld, L. B. Sohn, D. F. Vagts, Restatement (Third) of Foreign Relations Law of the United States, American Law Institute, vol. 1, 1987, section 521, comment f; Y. Takei, “Law and Policy…”, op.cit., p. 2; M. Mudrić, “Rights of States regarding underwater cables…”, op.cit., p. 249; E. Wagner, “Submarine Cables and Protections…”, op.cit., p. 134; R. Beckman, “Submarine Cables – A Critically Important but Neglected Area of the Law of the Sea”, paper presented at 7th International Conference on Legal Regimes of Sea, Air, Space and Antarctica, 15-17 of January 2010, New Delhi, p. 3, available at https://cil.nus.edu.sg/wp-content/uploads/2010/01/Beckman-PDF-ISIL- Submarine-Cables-rev-8-Jan-10.pdf, last visited 01/09/2020; E. Perez-Alvaro, “Unconsidered Threats…”, op.cit., p. 62; S. Coffen-Smout, G. Herbert, “Submarine cables: a challenge for ocean management”, Marine Policy, vol. 24, 2000, pp. 441-448, p. 443. 54 See T. Davenport, “Submarine Cables: Problems in Law…”, op.cit., p. 4. 55 See International Court of Justice explanation in North Sea Continental Shelf cases, International Law Association, Final Report of the Committee on the Formation of Customary (General) International Law, Statement of Principles Applicable to the Formation of General Customary International Law, Report of the Sixty-Ninth Conference, London, 2000, p. 52, available at https://www.law.umich.edu/facultyhome/drwcasebook/Documents/Documents /ILA%20Report%20on%20Formation%20of%20Customary%20International%2 0Law.pdf, last visited 01/09/2020. 110 the North Sea Continental Shelf cases, the practice must “include that of States whose interests are especially affected”56. In the case of the 1884 Convention, not all interested states were included in the process. Thus, the 1884 Convention rules are considered as not constituting rules of customary international law and it one more time confirms that current regulation of submarine cables belongs to the UNCLOS.

At the same time, the UNCLOS is considered as a source of customary international law. Its norms reflect practices implemented by the majority of states worldwide which means that even states not parties to the UNCLOS shall follow its provisions. Therefore, the status and place of Geneva Conventions in the customary international law for non-parties to the UNCLOS is not entirely clear. Especially in the circumstances that Article 38 of the ICJ Statute does not provide with a hierarchy of sources of international law. There is no strict structural order between customary international law which in case of submarine cables is represented by the UNCLOS and treaties represented by the Geneva Conventions. A theoretical question from the first sight, it might cause concerns in practice. For instance, in international maritime disputes where a state not party to the UNCLOS could choose at its discretion the norms of source of law that is more favorable for it in a concrete situation.

2. The role of the conventions in the formation of the current legal regime of submarine cables

The first attempts to govern submarine cables-related activities established an important basis for consistent regulation and further development of the law of the sea in the area of submarine cables.

The 1884 Convention was the first international document drawing attention to the needs of international legal regulation of submarine cables. It has made a significant contribution to its development despite the fact that it was initially signed only by twenty-six states.

56 North Sea Continental Shelf cases, ICJ Reports 1969, p. 43, paragraph 73. 111

Besides, it was the first international agreement entirely devoted to one particular aspect of the law of the sea. There are numerous international agreements on various aspects of the law of the sea including fishery agreements, agreements concerning matters of marine environment, biodiversity, pollution, shipping, navigation, et cetera. However, among all the areas requiring regulation states gave priority to submarine cables issues. Being a relatively small document consisting of seventeen articles it collected the most critical provisions and assembled them in the completed form. Some of the 1884 Convention’s provisions are still relevant nowadays. Timely and necessary standards had been created allowing protecting submarine telegraph cables from damage and thereby preventing disruption in communications.

The Geneva Conventions on the Continental Shelf and on the High Seas opened a milestone of the modern international legal regulation of submarine cables. They introduced the concept of two new maritime zones such as the continental shelf and the high seas. This step significantly influenced rights and obligations of states concerning submarine cables. Also, these conventions established new ideas of cable governance such as limits of coastal states, jurisdiction in relation to submarine cables, mutual obligations to respect other seabed users’ interests, and emphasized the idea of the necessity to adopt national legislation in order to ensure the implementation of international law.

The role of these conventions in the formation of the present legal regime of submarine cables cannot be underestimated. Gradually they have been introducing new norms and regulations following the real time progress and forming the present legal regime. Some of the novelties adopted by these conventions are still in force. This accentuates a universal character of these provisions meaning that what was relevant half a century ago is still relevant nowadays and maintained in the UNCLOS. Some of the provisions, in contrast, have disappeared during the time as they lost their relevance. In a certain sense, provisions of the Geneva conventions relating to submarine cables served as trial provisions for the modern submarine cables regime.

112

Submarine cables constitute maritime activity with a long history. However, it has not lost its relevance until now. It had passed through the change of technologies and greatly evolved over time. The main aim of submarine cables remains the same as it was in the beginning: to connect people. The legal regulation of this maritime activity also had emerged with first cables and developed over the centuries progressively forming the modern legal regime addressed in the following chapters.

113

SECOND SECTION

EXISTING LEGAL REGIME OF SUBMARINE CABLES: A FRAGMENTED REGIME

The aim of the second section is to analyze the current legal regime governing submarine cables by examining international agreements, domestic laws and other instruments forming the regulation on several levels.

Thus, Chapter IV is dedicated to the UNCLOS as the main and central source in international law collecting provisions that regulate submarine cables. The analysis is divided by maritime zones where different provisions regulating submarine cables are encountered. In continuation, Chapter V examines other relevant international agreements and emphasizes their contribution to the regime established by the UNCLOS. Finally, Chapter VI considers domestic and private law instruments regulating submarine cables by comparing and classifying legal efforts taken by states and private sector.

The legal regime governing submarine cables appears to be fragmented due to a variety of levels of regulation and incoordination between such levels. Leave of certain critical issues unregulated further exaggerates problems of implementation and retards the harmonious development of the international legal regime.

117

CHAPTER IV THE LEGAL REGIME OF SUBMARINE CABLES CONTAINED IN THE UNITED NATIONS CONVENTION ON THE LAW OF THE SEA 1982

This chapter aims to examine provisions of the UNCLOS, its interpretation, and application1. Presently it is considered as primary legal source and the most completed international agreement regulating submarine cables. It has incorporated provisions from all areas of the law of the sea, collected them together and presented in the form of international convention. The scope of the UNCLOS is determined by the fact that its members constitute the majority of states in the world, 168 countries nowadays2. However, paradoxically several coastal states actively using oceans in their economic, trade, and military activities are still not parties to the UNCLOS. For instance, the United States of America. It was one of the parties to the 1884 Convention but has not ratified the UNCLOS yet. Being one of the most active states in maritime activities, the United States keep a distance from the question of adoption of the UNCLOS3.

1 Some research results contained in this chapter were published by the author in D. Shvets, “Law of the Sea and Environmental Law acting together: Experience of laying submarine cable in the Arctic”, Revista Catalana de Dret Ambiental, vol. 9, No. 2, 2018, pp. 1-36. 2 As of 1 of September 2020. See the UN website, Division for Ocean Affairs and the Law of the Sea, consolidated table of ratifications/accessions, et cetera (pdf format), available at https://www.un.org/depts/los/reference_files/UNCLOS%20Status%20table_E NG.pdf, last visited 01/09/2020. 3 According to John Norton Moore’s (Professor of law at the University of Virginia) opinion, expressed in his several works and contributions made to other papers, there are several myths existing around the UNCLOS which do not let to proceed with the ratification. For instance, one of the “myths” (in words of Professor) is that the United States by signing the UNCLOS will give up its sovereignty to an international authority, namely, the UN. It will control the oceans, and the Convention is designed to put law of the sea matters to the hands of global bureaucracy. One more myth is there is no need for signing the UNCLOS since it already represents customary international law binding the United States and that ratification of the UNCLOS is inconsistent with the United States interests. In the Professor’s opinion all these arguments are far from reality and have nothing in common with the real aims of the Convention. However, this point of view nevertheless exists. See J. N. Moore, “UNCLOS Key to Increasing 119

Following the United States practice, Venezuela, Peru, Turkey, Eritrea, Kazakhstan, Turkmenistan, and some other states are also still not parties to the UNCLOS4. Spain, although had abstained from the adoption of the UNCLOS in 1982, later signed it with certain interpretative declarations and the convention came into force for Spain on 14 of February 1997.5

The fact that some states are not parties to the convention complicates progressive development of the law of the sea. Such states take advantage of international maritime spaces established by the UNCLOS but may not respect its obligations. In other words, they are not bound by the UNCLOS’s commitments except for rules with the status of customary international law. Although oceans are legally divided between states, they are jointly used and depend on each state’s activity by virtue of natural features. Waters of oceans are not stagnant. They circulate the globe bringing streams of living resources, ocean debris, plastic, and oil slicks6, which constitutes concern of all international community. Thus, improper activity of non-members of the UNCLOS can potentially bring harm to other states fulfilling in good faith their obligations under international law.

The same applies to submarine cables. For some states, the UNCLOS prescribes to perform obligations and some, without

Navigational Freedom”, Texas Review of Law and Politics, vol. 12, 2008, pp. 459- 467; J. Noyes, “U.S. Policy and the United Nations Convention on the Law of the Sea”, George Washington International Law Review, vol. 39, 2007, pp. 621-638. 4 As of 1 of September 2020. 5 C. Jiménez Piernas, “The ratification by Spain”, Spain and the Law of the Sea: 20 years under LOSC, Spanish Yearbook of International Law, vol. 21, 2017, pp. 181- 197, p. 182. 6 See M. Sigler, “The Effects of Plastic Pollution on Aquatic Wildlife: Current Situations and Future Solutions”, Water, Air, and Soil Pollution, vol. 225, Issue 11, 2014, pp. 1-9, p. 2, available at https://link.springer.com/content/pdf/10.1007%2Fs11270-014-2184-6.pdf, last visited 01/09/2020; D. L. Halliday, “A world current of plastic waste in the marine environment and solutions to the problem”, Capstone Projects and Theses, Paper 137, 2008, pp. 1-26, p. 11, available at https://digitalcommons.csumb.edu/cgi/viewcontent.cgi?article=1136&context=c aps_thes, last visited 01/09/2020. 120 being bound by its provisions, in theory, can deviate from them. It should be emphasized that in recent years this problem is vanishing given that provisions contained in the UNCLOS are gradually acquiring the status of customary international law. Thus, states that are not parties to the UNCLOS should comply with its provisions as the rest of the world recognized and accepted their significance7. However, it is highly desirable for the international community that all states become parties to the UNCLOS to share its benefits and incur obligations.

The UNCLOS, as well as its predecessors (1958 Geneva conventions), does not contain a separate chapter or a separate set of articles entirely devoted to submarine cables regulation. Rules relating to various aspects of submarine cables are found throughout its text in different chapters. In total there are nine articles concerning different legal issues. Therefore, articles 21, 51, 58, 79, 87, 112, 113, 114, 115 are discussed in this chapter.

To better focus on legal regime of submarine cables under the UNCLOS, this chapter groups its provisions on the geographical basis. Namely, in accordance with maritime spaces (also named zones or areas) identified by the UNCLOS since the legal regulation depends on the maritime space where submarine cable is laid. The need for such distinction is due to the fact that often the processes of laying, maintaining, and repairing damaged submarine cables are made by foreign cable vessels. That accounts for regulation of their entrance, location, and activities in certain areas. Especially in the areas under the sovereignty of coastal states. The regulation is required to balance shared maritime zones and to harmonize activities of cable ships with due respect to interests of coastal states.

A) THE LEGAL REGIME OF SUBMARINE CABLES IN MARITIME SPACES UNDER THE SOVEREIGNTY OF COASTAL STATES

7 D. Burnett, R. Beckman, T. Davenport, Submarine Cables: The Handbook…, op. cit., p.73. 121

1. Territorial sea

Under the UNCLOS, coastal states have the right to establish the breadth of a territorial sea up to a limit not exceeding twelve nautical miles, measured from baselines, and determined in accordance with the UNCLOS8. There are several methods how territorial sea could be measured and determined, although it appears to be more technical than a legal issue. What is worth noting from the legal perspective is that a zone of twelve nautical miles is titled territorial sea and within this maritime space, a coastal state has the right to regulate any activity of all subjects, including activities for laying, operating, and repairing damaged submarine cables9. a. Sovereign rights of coastal states

Territorial sea is a maritime space playing an exceptional role in submarine cables projects provided that the majority of cables go through the territorial sea. Technically, cables have their landing stations onshore which means that they start in internal waters, a maritime zone also mentioned by the UNCLOS. However, internal waters are not regulated by international law. Rules concerning submarine cables in internal waters are established by domestic legal orders and states have full discretion in formulating them. The next maritime space after internal waters is territorial sea since geographically it is the first international maritime space where cables start or end. Thus, a coastal state has the right to regulate activities relating to submarine cables in the territorial sea by establishing specific rules in domestic legislation in accordance with international law. At the same time, coastal states’ activities cannot be unlimited,

8 UNCLOS, Article 3. 9 On the territorial sea see: Chapter 4 “The territorial sea” in R. Churchill, A. Lowe, The law of the sea, op.cit.; I. Buga, “Territorial Sovereignty Issues in Maritime Disputes: A Jurisdictional Dilemma for Law of the Sea Tribunals”, The International Journal of Marine and Coastal Law, vol. 27, No. 1, 2012, pp. 59-96; C. H Schofield, “Departures from the Coast: Trends in the Application of Territorial Sea Baselines under the Law of the Sea Convention”, The International Journal of Marine and Coastal Law, vol. 27, No. 4, 2012, pp. 723-732. 122 and there are restrictions to be followed to respect rights of other states. b. Limits of the sovereignty of coastal states

Although territorial sea is the area where coastal states have a certain freedom of actions, they must comply with rules of international law. In particular, with the provisions of the UNCLOS, as well as with other international regulations10. Therefore, there are certain limits on exercising its sovereignty by a coastal state in the territorial sea. First is the exercise of innocent passage by foreign vessels; and second is the limitation of regulation by domestic law.

1) Exercise of innocent passage by foreign vessels

Article 21 of Part II of the UNCLOS is devoted to the territorial sea and contiguous zone and determines rules on submarine cables in the territorial sea, respectively. It allows coastal states adopting laws and regulations in accordance with the UNCLOS and other rules of international law relating to the right of innocent passage through the territorial sea, in respect of the protection of submarine cables and pipelines. The innocent passage is defined as navigation through the territorial sea that must be continuous and expeditious11. Activities prejudicial to peace, good order, or security of the coastal state prevent such a passage from being considered innocent. Among these activities performed by a vessel during the passage through the territorial sea, in relation to submarine cables “any act aimed at collecting information to the prejudice of the defence or security of the coastal State” is considered as non-innocent according to paragraph “c” of Article 19.

The common practice in the past was putting special devices on submarine cables with the aim of listening and collecting information transferred by cables which was later used for espionage purposes12. Cables were attacked with the purpose of stealing information

10 UNCLOS, Article 2 (3). 11 UNCLOS, Article 18. 12 E. A. Baikov, G. L. Zykov, Tainy podvodnogo…, op.cit., p. 83. 123 regarding secret and confidential data of states’ defense and military operations. Although it may seem that this unscrupulous practice of states is left in the past, acts of espionage by means of eavesdropping submarine cables are still performed in the modern world. Some sources reveal that the United Kingdom’s a well as the United States’ special services (such as Britain’s spy agency GCHQ, the Government Communications Headquarters; or United States Navy) along with several other states still employ submarine cables for eavesdropping purposes13. Thus, the UNCLOS gives coastal states the right to establish rules concerning the protection of submarine cables during the exercise of innocent passage for defending their national security interests.

Article 21 (4) expressly highlights that all ships while exercising the right of innocent passage in the territorial sea should follow generally accepted international regulations relating to the prevention of collisions at sea:

“Foreign ships exercising the right of innocent passage through the territorial sea shall comply with all such laws and regulations and all generally accepted international regulations relating to the prevention of collisions at sea”.

Such regulations are, first of all, COLREGs14, and subsequently numerous IMO documents applying to cable ships. Their

13 For more information see E. MacAskill, J. Borger, N. Hopkins, N. Davies, J. Ball, “GCHQ taps fibre-optic cables for secret access to world's communications”, The Guardian (International edition), 2013, pp. 1-5, p. 1, available at https://www.theguardian.com/uk/2013/jun/21/gchq-cables-secret-world- communications-nsa, last visited 01/09/2020; D. Axe, “The Navy’s underwater eavesdropper”, Reuters, July 19, 2013, pp. 1-2, p. 1, available at http://blogs.reuters.com/great-debate/2013/07/18/the-navys-underwater- eavesdropper/, last visited 01/09/2020; T. Gibbons-Neff, “As Russia scopes undersea cables, a shadow of the United States’ Cold War past”, The Washington Post, October 26, 2015, pp. 1-3, p. 1, available at https://www.washingtonpost.com/news/checkpoint/wp/2015/10/26/as-russia- scopes-undersea-cables-a-shadow-of-the-united-states-cold-war- past/?utm_term=.3fe9ab62498b, last visited 01/09/2020. 14 Convention on the International Regulations for Preventing Collisions at Sea (COLREGs), op.cit. 124 contribution to the legal regime of submarine cables is discussed in chapter V of this thesis.

2) Limitation of regulation by domestic law

The UNCLOS limits the content of national laws and regulations by establishing that:

“such laws and regulations shall not apply to the design, construction, manning or equipment of foreign ships unless they are giving effect to generally accepted international rules or standards”15.

In other words, these matters should be addressed by the flag state since such state is responsible for establishing safety norms in the national legislation and controlling their enforcement.

The issue of provisions regulating foreign ships activity in the territorial sea applies in the context of cable ships engaged in cables- related operations. They, as well as all other ships, are exempt from coastal state’s own laws beyond those which extend internationally established rules. In other words, cable ships operating in coastal states’ territorial sea should only comply with international law requirements for ship’s design, construction, manning, or equipment16. However, Article 21 (2) does not expressly define what is considered by “generally accepted international rules or standards”. Notwithstanding the question to include a definition of “generally accepted international rules or standards” was raised

15 UNCLOS, Article 21 (2). 16 In modern international law the main convention relating to the seaworthiness of ships is the Convention for the Safety of Life at Sea 1974 (SOLAS), concluded 1 of November 1974, entered into force 25 of April, 1980, 32 UST 47; 1184 UNTS 278; and its 1978 Protocol, concluded 17 of February 1978 by the International Conference on Tanker Safety and Pollution Prevention, entered into force 1 of May 1981; 1226 UNTS 237. They are supplemented by numerous international agreements devoted to the protection of marine environment and International Maritime Organization’s resolutions, guidelines, and recommendations available at IMO website at http://www.imo.org/en/KnowledgeCentre/IndexofIMOResolutions/Maritime- Safety-Committee-(MSC)/Pages/default.aspx, last visited 01/09/2020. 125 during the negotiations on the text of the UNCLOS17, it appears that coastal states may only implement and elaborate internationally established rules and standards in its domestic legislation.

Generally, these limitations invoke multiple aims such as to maintain the integrity of cable systems, to avoid breaks in communications, protect cables in areas used for navigation, and to preserve the marine environment18. Measures to be taken by coastal states to ensure continuous operation of communications systems might include the prohibition of anchoring in areas where submarine cables are laid, adoption of rules on liability, and imposition of penalties for damage to cables19. Among them the main measure appears to be the protection of submarine cables by establishing liability for damage to cables in domestic legislation.

2. Archipelagic Waters a. Sovereign rights of archipelagic states

Archipelagic waters20 comprise a maritime area that similarly to the territorial sea falls within the scope of the sovereignty of an

17 M. Nordquist, S. Nandan, S. Rosenne, (eds.), The United Nations Convention on the Law of the Sea 1982: A Commentary, Dordrecht, Boston and London: Martinus Nijhoff Publishers, 1993, vol. II, p. 202. 18 Ibid, p. 200. 19 A. Proelss, United Nations Convention on the Law of the Sea…, op.cit., p. 205. As an example of such a prohibition see Submarine Telegraph Act, op.cit., section 3. 20 On archipelagic waters see: UN, Office for Ocean Affairs and the Law of the Sea, The Law of the Sea: Practice of Archipelagic States, New York: United Nations, 1992, available at http://www.un.org/Depts/los/LEGISLATIONANDTREATIES/PDFFILES/p ublications/E.92.V.3.pdf, last visited 01/09/2020; D. Ruth, Q. Hanich, “Small- island States and the LOS Convention 30 Years On: Have the Benefits been Realized?” in C. Aldo, S. Coffen-Smout, M. L. McConnell, (eds.), Ocean Yearbook 26, Leiden: Martinus Nijhoff Publishers, 2012; N. Hong, J. Li, P. Chen, “The Concept of Archipelagic State and the South China Sea: UNCLOS, State Practice and Implication”, China Oceans Law Review, vol. 2013, Issue 17, 2013, pp. 209- 239. 126 archipelagic state21. Article 49 of the UNCLOS establishes that an archipelagic state has sovereignty over archipelagic waters defined as the waters enclosed by the archipelagic baselines.22 In accordance with Article 52, foreign vessels enjoy the right of innocent passage in the archipelagic waters, similar to passing through the territorial sea. The archipelagic state, akin to a coastal state, regulates activities in archipelagic waters in order to protect submarine cables. Generally, regimes of submarine cables in territorial sea and in archipelagic waters are resembling and characterized by a relatively broad discretion of states in these areas. At the same time, by analogy with the territorial sea states’ discretion is not unlimited and subject to several restrictions. b. Limits of the sovereignty of archipelagic states

In the archipelagic waters the sovereignty of archipelagic states is restricted. Limitations include recognition of traditional rights on activities exercised in archipelagic waters, and respect of existing submarine cables. They are addressed in the present sub-section.

1) Recognition of traditional rights on activities exercised in archipelagic waters

Without prejudice to its sovereignty, the archipelagic state should respect existing agreements with other states and recognize traditional rights to fishing and other legitimate activities of directly adjacent neighboring states in certain areas within archipelagic waters23. The term “other legitimate activities” is not defined by the

21 Article 46 (a) of the UNCLOS defines “archipelagic state” as “a State constituted wholly by one or more archipelagos and may include other islands”. It is followed by the notion of “archipelago” in Article 46 (b) meaning “a group of islands, including parts of islands, interconnecting waters and other natural features which are so closely interrelated that such islands, waters and other natural features form an intrinsic geographical, economic and political entity, or which historically have been regarded as such”. 22 The archipelagic baselines should be drawn in accordance with rules defined in Article 47. 23 UNCLOS, Article 51 (1). 127

UNCLOS but it appears to be applicable to those activities that had been taking place repeatedly in this maritime area before the regime of archipelagic waters was established. For instance, military operations such as training might be considered as possible legitimate activities24. Laying of submarine cables is not a process repeated frequently, it is always a single aim project. It designates that laying of submarine cables cannot be considered as a traditional right of neighboring states.

2) Respect of existing submarine cables

After submarine cable is laid in the archipelagic waters, it requires certain maintenance and repair works. Therefore, the second part of Article 51 (2) deserves special attention. It states that:

“An archipelagic State shall respect existing submarine cables laid by other States and passing through its waters without making a landfall. An archipelagic State shall permit the maintenance and replacement of such cables upon receiving due notice of their location and the intention to repair or replace them” 25.

Regarding the laying of new submarine cables in archipelagic waters, the UNCLOS does not contain separate provisions. However, provided that archipelagic waters are under the sovereignty of the archipelagic state, it can be concluded that archipelagic states have the right to establish conditions for laying submarine cables in these maritime areas. At the same time, in order to optimally address submarine cables, it appears that archipelagic states should establish

24 M. Nordquist, S. Nandan, S. Rosenne, (eds.), The United Nations Convention on the Law of the Sea…, vol. II, op. cit., p. 453. 25 Prior to the signature of the UNCLOS, the notion “archipelagic waters” did not exist in international law of the sea. However, submarine cables in such territories had already been laid. Since archipelagic states now have sovereignty over maritime spaces which previously have been considered as the high seas and could legitimately obstruct maintenance and replacement processes in their archipelagic waters, it was decided during the negotiations to include this article in the final text of the convention. See A. Proelss, United Nations Convention on the Law of the Sea…, op.cit., p. 449. 128 an acceptable regime for submarine cables26, as well as to follow recommendations of competent international authorities. For instance, of the International Cable Protection Committee or regional cable protection committees exercising their functions on a territorial basis27.

B) THE LEGAL REGIME OF SUBMARINE CABLES IN MARITIME SPACES UNDER CERTAIN JURISDICTIONAL RIGHTS OF COASTAL STATES

1. Contiguous zone

The contiguous zone is a maritime space located next to the territorial sea seawards where coastal states may exercise certain activities such as control necessary to prevent infringement of customs, fiscal, immigration, or sanitary laws and regulations within their territory or territorial sea; and to punish infringement of such laws and regulations28. The contiguous zone may not extend beyond twenty four nautical miles from baselines, a starting point to measure the breadth of the territorial sea29. Geographically it may also overlap

26 Provided that “laying and maintenance of submarine cables is considered a reasonable use of the sea and coastal States benefit from them”. See L. Carter, D. Burnett, “Subsea Telecommunications” in Routledge Handbook of Ocean Resources and Management, edited by H. D. Smith, J. L. Suárez de Vivero and T. S. Agardy, London and New York: Routledge, 2015, pp. 349-365, p. 352. 27 The ICPC cooperates with national governments on the issues of regulation of submarine cables in domestic jurisdictions and recommends practical means to improve submarine cables’ legal regime. For instance, the ICPC joint workshop was held by the Coordinating Ministry for Maritime Affairs of the Republic of Indonesia and the ICPC regarding submarine telecommunication cables in Indonesia on 3rd of December 2015. More information is available on the ICPC website at https://www.iscpc.org/documents/?id=2027, last visited 01/09/2020. 28 On the contiguous zone see: UN, Division for Ocean Affairs and the Law of the Sea, The law of the sea: national legislation on the territorial sea, the right of innocent passage, and the contiguous zone, New York: United Nations, 1995; O.P. Sharma, The International Law of the Sea: India and the UN Convention of 1982, Chapter 4 “The Contiguous Zone”, Oxford: Oxford University Press, 2009; D. De Pietri, “La redifinición de la zona contigua por la legislación initerna de los Estados”, Revista Española de Derecho Internacional, vol. 62, 2010, pp. 119-144. 29 UNCLOS, Article 33. 129 with the exclusive economic zone30. However, in the contiguous zone, coastal states’ rights are non-identical to rights in the exclusive economic zone31. Formally the contiguous zone is placed to Part II of the UNCLOS titled “Territorial sea and contiguous zone”. In a schematic depiction of maritime zones, contiguous zone would appear as a maritime area intersecting with both territorial sea and exclusive economic zone. Therefore, this maritime zone can be characterized as a middle zone having its own regulation.

There is only one article in Part II, section 4 of the UNCLOS titled “Contiguous zone” and this article (Article 33) does not mention submarine cables directly. The UNCLOS gives some cross- references to contiguous zone in other articles such as 48, 111, and 121. However, they also do not address submarine cables. Along with that, in the contiguous zone coastal states are given the right to prevent and punish infringements committed within territorial sea in relation to breach of certain laws and regulations governing submarine cables. As it was previously observed, domestic laws and regulations of a coastal state apply in the territorial sea.

A concrete example would facilitate a comprehension of the contiguous zone’s legal regime. For instance, a cable ship breaches domestic laws of a coastal state such as immigration rules of a cable ship crew in the territorial sea where it is engaged in submarine cable laying. After a certain time these violations become known to competent authorities of the coastal state. As a result, such authorities would be able to take actions to prosecute offences not only within the territorial sea but even if a ship has already left territorial sea and is found in the contiguous zone. However, in no case the coastal state might act beyond the limit of twenty four

30 According to Article 55, providing that “the exclusive economic zone is an area beyond and adjacent to the territorial sea”. The breadth of the territorial sea cannot extend beyond 12 nautical miles and the breadth of the contiguous zone can be up to 24 nautical miles from the baselines. Therefore, this difference of 12 nautical miles may fall within two maritime areas – the contiguous zone and the exclusive economic zone. 31 M. Nordquist, S. Nandan, S. Rosenne, (eds.), The United Nations Convention on the Law of the Sea…, vol. II, op. cit., p. 275. 130 nautical miles from the baselines from which the breadth of the territorial sea is measured. This constitutes the idea of the contiguous zone, to create a “buffer” area between maritime zones under the sovereignty of coastal states and maritime zones not under the sovereignty of coastal states32.

With regard to submarine cables, provisions of Article 33 do not appear to be of high applicability. These rules were designed with the aim to give control over customs and immigration violations and to provide coastal states with more “time” to pursue offenders until they leave maritime areas under control of coastal states. In the case of submarine cables, cable ships and crew are easily identifiable even after a cable ship leaves territorial sea and contiguous zone. Cable ships remain in contact with relevant coastal states authorities on the subject of cable laying permissions without which cable projects cannot be implemented. Therefore, a coastal state has access to required data about the ship and its crew. Furthermore, cable ships themselves are unique and infrequent vessels and might be recognized without efforts. Consequently, it appears that Article 33 does not have a wide scope of application in relation to submarine cables.

2. Exclusive economic zone

Exclusive economic zone is the area of two hundred nautical miles from the baselines subject to the coastal state’s jurisdiction where it

32 An important thing to note in relation to a contiguous zone is that this maritime space, unlike continental shelf, does not appear automatically. To have this zone, states must declare their willingness to have it. Normally it is done through an adoption of a special legislative act in domestic legislation. Not all the states that are parties to the UNCLOS have done it so far and there is a discussion in scholar’s works whether the contiguous zone is a necessary maritime space and whether coastal states really need it. See E. Rizzuto, C. Guedes Soares, Sustainable Maritime Transportation and Exploitation of Sea Resources, Boca Raton, London, New York, Leiden: CRC Press, 2011, vol. I, p. 781; D. Attard, M. Fitzmaurice, N. A. Martinez Gutierrez, The IMLI Manual on International Maritime Law: The Law of the Sea, IMO Publications, Oxford: Oxford University Press, 2014, vol. I, section 2.4. 131 has rights and freedoms to establish certain regime33. Among the rights of a coastal state in this area is the right to regulate the process of laying submarine cables performed by other states34. Part V of the UNCLOS is explicitly dedicated to the exclusive economic zone35. a. Rights of third states to lay submarine cables

Article 58 of the UNCLOS determines the legal regime of submarine cables in the exclusive economic zone. It conveys that any contracting party of the UNCLOS (including landlocked states) has the right to exercise freedom enshrined in Article 87 (“Freedom of the high seas”) which includes among others the right to lay and maintain submarine cables on the seabed. However, when exercising their rights, all other states are obliged to give due attention to rules and regulations established by the coastal state in accordance with the UNCLOS. Thus, an exclusive economic zone is open for submarine cables on a similar basis as in maritime spaces under the sovereignty of coastal states. Nevertheless, a coastal state has fewer rights to regulate this activity than in the territorial sea or in archipelagic waters.

33 UNCLOS, Article 55. 34 On exclusive economic zone see: R. Churchill, A. Lowe, The law of the sea, op.cit., Chapter 9 “The exclusive economic zone”; Y. Tanaka, The international law of the sea, Chapter 5 “Marine Spaces beyond National Jurisdiction”, Cambridge: Cambridge university Press, 2012; B. Kwiatkowska, The 200 mile exclusive economic zone in the new law of the sea, Leiden: Martinus Nijhoff Publishers, 1989; D. Rothwell, T. Stephens, The International Law of the Sea, Chapter 4 “The Exclusive Economic Zone”, Oxford: Bloomsbury Publishing, 2016; T. Koh, “The Exclusive Economic Zone”, Malaya Law Review, vol. 30, Issue 1, 1988, pp. 1-33; J. Lawrence, “The Exclusive Economic Zone and Ocean Management”, Ocean Development and International Law, vol. 18, Issue 3, 1987, pp. 305-332; D. Pharand, U. Leanza, (eds.), The Continental Shelf and the Exclusive Economic Zone; Delimitation and Legal Regime, Dordrecht: Martinus Nijhoff Publishers, 1993, pp. 37-45; J. A Pueyo Losa, “La indeterminación del nuevo orden jurídico marítimo internacional: Reflexiones sobre el carácter consuetudinario de la zona económica exclusiva y el valor de la Nueva Convención sobre el derecho del mar”, Revista Española de Derecho Internacional, vol. 37, Issue 2, 1985, pp. 323-354. 35 See Articles 55-75 of the UNCLOS. 132 b. Conditions to lay submarine cables in the exclusive economic zone

When exercising the right to lay submarine cables in the exclusive economic zone states should respect laws and regulations of the coastal state:

“In exercising their rights and performing their duties under this Convention in the exclusive economic zone, States shall have due regard to the rights and duties of the coastal State and shall comply with the laws and regulations adopted by the coastal State in accordance with the provisions of this Convention and other rules of international law in so far as they are not incompatible with this Part”36.

The obligation of states to have due regard to the rights and duties of the coastal state is not defined by the UNCLOS. However, it might be expounded as a respect and consideration of coastal states interests while exercising their own rights or freedoms. It should be interpreted as a balanced approach to exercise rights without causing harm to interests of other actors. In international law there is a practice of defining “due regard” concept in relation to specific circumstances37. However, each case is unique and the applicability of concept of due regard should be evaluated individually based on particular circumstances of the situation and appropriateness of relevant factors38. To date there were no decisions of international tribunals concerning the applicability of due regard principle to submarine cables based on practical experience.

36 UNCLOS, Article 58 (3). 37 See, for instance, Nuclear Tests Case (Australia & New Zealand v. France, ICJ Reports, 1974, pp. 253-457, where France claimed that for conducting its nuclear tests it excluded the fishing areas and busy sea routes, and took safety warning measures, so as to prevent damages to the vessels of other states. The ICJ finally did not rule on this matter since France announced that it had dropped the plans for conducing further nuclear tests. In the case Fisheries Jurisdiction (United Kingdom v. Iceland), ICJ Reports, 1974, pp. 8-175, the claim of Iceland to unilaterally prohibit British vessels from conducting fishing activities beyond the limit of 12 nautical miles although they have been traditionally fishing there was not recognized as giving a due regard by Iceland to the rights of Great Britain. 38 R. Churchill, A. Lowe, The Law of the Sea, op.cit., pp. 206-207. 133

The concept of due regard appears in the UNCLOS several times. In total there are nineteenth mentions in the convention39and some of them apply to submarine cables. For instance, due regard to the interests of other states in the high seas where submarine cables are laid. However, it appears impossible to formulate the content of due regard in relation to submarine cables in advance, without having a concrete case in place. Some general criteria might include the quantity of interests concerned (whether it is the first cable connecting the territory or not); time spent on preparing maritime activities; prior notification of the planned activities; dissemination of information among interested states; and the amount of subjects involved in the development of the project.

At the same time, a coastal state should respect rights of all other states intended to exercise certain activity in the exclusive economic zone, including laying of submarine cables. The UNCLOS always aims to keep a balance between the rights of a coastal state and rights of all other members of the convention exercising certain freedoms in the exclusive economic zone. In particular, the UNCLOS provides that rules and regulations adopted by coastal states should be in compliance with the UNCLOS and other rules of international law to the extent as they are not incompatible with Part V “Exclusive Economic Zone”40. Such rules and regulations established by coastal states may relate, for instance, to exploration and exploitation of natural resources or production of energy from the water, currents, and winds. Coastal states may also exercise jurisdiction with regard to the establishment and use of artificial islands, installations, and structures; marine scientific research; and protection and preservation of the marine environment41. Therefore, when submarine cable project is initiated, relevant laws concerning not only submarine cables directly but also adjacent areas mentioned above are considered. For instance, cable projects can be implemented jointly with construction of offshore installations

39 Z. Guobin, “A Discussion on Due Regard in the United Nations Convention on the Law of the Sea”, China Oceans Law Review, vol. 2014, No. 2, 2014, pp. 70-93, p. 72. 40 UNCLOS, Article 58 (3). 41 UNCLOS, Article 56. 134 where cables provide electricity supply42. These projects are also subject to laws of coastal states relating to artificial installations.

During the negotiations on the text of Article 58, China proposed to guarantee freedom of navigation in the exclusive economic zone and make laying of submarine cables and pipelines subject to coastal states’ consent43. However, this proposal was not supported by other states. In general, the exclusive economic zone is free for laying submarine cables and does not require an expressed consent of the coastal state. Since the regime of an exclusive economic zone is not as strict as the regime of the territorial sea, Article 58 stipulates that:

“In the exclusive economic zone, all States, whether coastal or land-locked, enjoy subject to the relevant provisions of this Convention, the freedoms referred to in Article 87 of navigation and overflight and of the laying of submarine cables and pipelines, and other internationally lawful uses of the seas related to these freedoms, such as those associated with the operation of ships, aircraft and submarine cables and pipelines, and compatible with the other provisions of this Convention”.

In this provision, the reference is given to Article 87 of the UNCLOS found in the part titled “High Seas” that establishes rights and freedoms of states in the high seas. Therefore, in the exclusive economic zone states formally enjoy rights and freedoms of the high seas, but with some exceptions. One of such exceptions prescribes that when laying submarine cables, states are obliged to take due consideration of rights and obligations of the coastal state and to comply with its laws and regulations, irrespective of how confusing they might be.

42 T. Zoethout, “The €1.5 bn Plan to Build an Artificial Island for Offshore Wind”, Elektor, February 28, 2018, pp. 1-4, p. 1, available at https://www.elektormagazine.com/news/the-1-5-bn-plan-to-build-an-artificial- island-for-offshore-wind, last visited 01/09/2020; T. Axelsson, “Submarine Cable Laying and Installation Services For the Offshore Alternative Energy Industry”, Energy Ocean, 2008, pp. 1-9, p. 1, available at https://www.3utech.com/sites/3utech.com/files/Energy%20Ocean%2008%203 U%20Technologies%20080619.pdf, last visited 01/09/2020. 43 A/AC.38/SC.II/L.34, part 2, paragraphs (4) and (6), reproduced in III SBC Report 1973, at 71, 73 (China). 135

A more detailed description of measures that coastal states may adopt in relation to the exclusive economic zone can be found in Article 211 (5) providing that a coastal state in respect to its exclusive economic zone may adopt:

“<…> laws and regulations for the prevention, reduction, and control of pollution from vessels conforming to and giving effect to generally accepted international rules and standards established through the competent international organization or general diplomatic conference”.

This should be considered in the context of cable ships performing works on laying or maintenance of submarine cables. Although the convention does not distinguish submarine cables concretely, cable ships activities also constitute a part of submarine cables’ legal regime provided that they comprise an inherent part of completing the whole cable project.

Generally, the legal regime of laying and maintaining submarine cables in the exclusive economic zone aims to give coastal states limited regulatory mechanisms in the framework of international law instruments and to provide mutual respect of rights of coastal states and all other states enjoying the right to lay submarine cables in the exclusive economic zone.

3. Continental shelf

According to the UNCLOS, the continental shelf is:

“the seabed and subsoil of the submarine areas that extend beyond its territorial sea throughout the natural prolongation of its land territory to the outer edge of the continental margin, or to a distance of 200 nautical miles from the baselines from which the breadth of the territorial sea is measured where the outer edge of the continental margin does not extend up to that distance” 44..

As it follows from the definition of the continental shelf, two maritime spaces, continental shelf, and exclusive economic zone, geographically occupy the same area. The difference is that the

44 UNCLOS, Article 76. 136 regime of the exclusive economic zone extends to the water column and the continental shelf regime covers seabed and subsoil of the same area. However, if the continental shelf of the state extends to more than two hundred nautical miles, a concept of the outer continental shelf appears. The UNCLOS allows this in special circumstances45. In this case, the water column above the extended continental shelf beyond the two hundred-miles zone is regulated under the regime of the high seas46. Thus, the water column above the continental shelf may be regulated by two different maritime areas regimes: of the exclusive economic zone and of the high seas. From the perspective of submarine cables’ legal regime, both maritime areas are of interest provided that cable-related activities occur not only in the seabed but also in a water column considering the activities of cable ships. a. The right to lay submarine cables as the right of third parties

Article 79 of the UNCLOS appears to be of particular interest for two reasons. First, it is entirely devoted to submarine cables. Second,

45 For instance, Spain as a party to the UNCLOS used its right to extend the continental shelf by submitting claims to the CLCS in 2006, 2009 and 2014. See more in J. M. De Faramiñán, “The continental shelf and its extension”, Spain and the Law of the Sea: 20 years under LOSC, Spanish Yearbook of International Law, vol. 21, 2017, pp. 267-277, p. 269. 46 On the continental shelf see: R. Churchill, A. Lowe, The law of the sea, op.cit., Chapter 8 “The continental shelf”; R. Anand, Origin and Development of the Law of the Sea: History of International Law Revisited, Hague: Martinus Nijhoff, 1982; P-T. Stoll., “Continental Shelf”, Max Planck Encyclopedia of Public International Law [MPEPIL], September 2008, pp. 1-11, available at http://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law- 9780199231690-e1152#, last visited 01/09/2020; D. P. O’Connell, International Law of the Sea: Oxford, Clarendon Press 1982, vol. I, 443; T. Mc Dorman, “The Continental Shelf Regime in the Law of the Sea convention: A reflection on the First Thirsty Years”, International Journal of Marine and Coastal Law, vol. 27, 2012, pp. 743-751; B. Kunoy, “The Terms of Reference of the Commission on the Limits of the Continental Shelf: A creeping Legal Mandate”, Leiden Journal of International Law, vol. 25, 2012, pp. 109-130; J. M. Faramiñán Gilbert, “Consideraciones jurídicas sobre la extensión de la plataforma continental (PC) más allá de las 200 (M) millas marinas (algunas referencias a la plataforma continental española”, in V. E. Bou Franch, J. Juste Ruiz (Coords.) and J. M. Sánchez Patrón, (Dir.), Derecho del mar y sostenibilidad ambiental en el Mediterráneo, Valencia: Tirant lo Blanch, Valencia, 2014. 137 it contains the most important provisions relating to submarine cables and establishes the basic principle that all states are entitled to lay submarine cables on the continental shelf. Article 79 reads as follows:

“1. All States are entitled to lay submarine cables and pipelines on the continental shelf, in accordance with the provisions of this article. 2. Subject to its right to take reasonable measures for the exploration of the continental shelf, the exploitation of its natural resources and the prevention, reduction and control of pollution from pipelines, the coastal State may not impede the laying or maintenance of such cables or pipelines. 3. The delineation of the course for the laying of such pipelines on the continental shelf is subject to the consent of the coastal State. 4. Nothing in this Part affects the right of the coastal State to establish conditions for cables or pipelines entering its territory or territorial sea, or its jurisdiction over cables and pipelines constructed or used in connection with the exploration of its continental shelf or exploitation of its resources or the operations of artificial islands, installations and structures under its jurisdiction. 5. When laying submarine cables or pipelines, States shall have due regard to cables or pipelines already in position. In particular, possibilities of repairing existing cables or pipelines shall not be prejudiced.”

With respect to the continental shelf Article 79 (2) provides the right of a coastal state to take reasonable measures to explore continental shelf, develop its natural resources, and prevent, reduce, and control pollution from pipelines. These are activities that coastal state may exercise upon its own discretion provided that resources of the continental shelf are under the exclusive right of a coastal state. Thus, cables are expected to be laid on the continental shelf without obtaining any permission or consent from the coastal state unless the project of a new cable intersects with the right of the coastal state to explore the resources of the continental shelf.

Special consideration needs to be given to the provisions regarding control of pollution and delineation of the course of submarine cables. These two requirements can be established only in relation to pipelines as specified by the UNCLOS. Submarine cables are not mentioned in this context provided that cables cannot cause the same extent of pollution as pipelines and that the course of the cable should be determined freely, without the consent of the coastal state,

138 but pursuant to the best scientific knowledge and seabed characteristics.

One more key element of the legal regime of submarine cables on the continental shelf provided by the UNCLOS is that states should properly consider already laid and existing cables and pipelines when laying new submarine cable on the continental shelf. In particular, the possibility of repairing existing cables and pipelines should not be deteriorated under Article 79 (5). In practice, this provision is implemented not by states but by cable companies47. The route survey preceding a cable laying takes into consideration existing structures of the seabed such as fishing nets or other submarine cables that could possibly interfere with planned cable-related activities. Based on the diagram where all points of existing structures are marked, the route for new submarine cable is carefully elaborated. It allows avoiding intersections between cables and fast access for their repairs. Many companies offer their services on the cable route survey nowadays48. Some of these entities provide with a comprehensive technological support from cable route survey until the installation of a submarine cable49, while some are specialized on route survey exclusively50.

47 T. Ohta, T. Nishiyama, “Route Design/Cable Laying Technologies for Optical Submarine Cables”, NEC Technical Journal, vol. 5 No.1, 2010, pp. 46-50, p. 47, available at https://pdfs.semanticscholar.org/3750/9f9195bb1d4ce3c8d59cffdcf05d73e3e912. pdf, last visited 01/09/2020. 48 See Global Marine website, section “Route Survey”, available at https://pdfs.semanticscholar.org/3750/9f9195bb1d4ce3c8d59cffdcf05d73e3e912. pdf, last visited 01/09/2020; Gardline website, section “Submarine Cable Routes”, available at http://www.gardline.com/activities/submarine-cable-routes/, last visited 01/09/2020; MMT Group AB website, section “Cable Route Surveys”, available at https://www.mmt.se/our-services/renewable-energy-marine- cables/cable-route-surveys/, last visited 01/09/2020. 49 For example, DeepOcean Group, Inc. offers route survey as well as cable installation, see DeepOcean website, section “Services”, available at https://deepoceangroup.com/services/survey-seabed-mapping/cable-survey/, last visited 01/09/2020. 50 For example, Canadian Seabed Research Ltd. provides only route surveys, see Canadian Seabed Research Ltd. website, section “Home”, available at http://www.csr-marine.com/, last visited 01/09/2020. 139 b. Limits of sovereign rights of coastal states

With respect to the rights of coastal states on the continental shelf, the UNCLOS establishes certain limitations. Article 78 (2), for instance, provides that the exercise of rights of a coastal state with regard to the continental shelf shall not prejudice interests of navigation and other rights and freedoms of other states provided for in the UNCLOS, or lead to any unjustified interference with their implementation. The navigation is separated from other activities as the critical use of the oceans but these restrictions apply to other activities including submarine cables. When exercising sovereign rights on its continental shelf, a coastal state should not prevent other states’ vessel from navigating through its maritime areas. At the same time, a coastal state is free to establish requirements for cables entering its territorial sea or territory as areas under coastal state’s jurisdiction pursuant to Article 79(4).

The UNCLOS in Article 79 as well as in many other cases in the convention aims to ensure a correspondence between the rights of third states to lay submarine cables and the rights of a coastal state with respect to its maritime spaces.

In general, continental shelf similarly to the exclusive economic zone is a maritime area free for laying submarine cables provided that the regime of submarine cables is not as strict as in the territorial sea. The UNCLOS dedicates special attention to the continental shelf, and the legal regime of submarine cables is mostly developed in this maritime area.

C) THE LEGAL REGIME OF SUBMARINE CABLES IN MARITIME SPACES NOT SUBJECT TO JURISDICTION OF COASTAL STATES

1. High Seas

140

The high seas is a maritime space exempted from jurisdiction of any state, free for navigation and reserved for peaceful purposes51. Part VII of the UNCLOS is dedicated to the high seas and Article 86 states:

“The provisions of this Part apply to all parts of the sea that are not included in the exclusive economic zone, in the territorial sea or in the internal waters of a State, or in the archipelagic waters of an archipelagic State. This article does not entail any abridgement of the freedoms enjoyed by all States in the exclusive economic zone in accordance with article 58”.

Appeared in the Convention on the High Seas and further followed by the UNCLOS, the concept of freedom of the high seas remains to be one of the main postulates of international law of the sea. During the negotiations on the text of the UNCLOS, the area currently known as the high seas was also titled as “international sea area” and “international seas”. However, creators of the UNCLOS made their choice in favor of the title “high seas”, although it does not reflect an international nature of this maritime area. a. The right of all states to lay submarine cables in the high seas

Article 87 (1) enumerates freedoms of the high seas, meaning those activities all states are entitled to exercise in this maritime area. Although not all states in the world have access to the high seas due

51 On the high seas see I. Lukashuk, Mezdunarodnoe pravo. Osobennaya chast (Международное право. Особенная часть), Chapter 6 “Mezdunarodnoe morskoe pravo” (Международное морское право), Moscow: Wolters Kluwer, 2008; Y. Takei, Filling Regulatory Gaps in High Seas Fisheries Discrete High Seas Fish Stocks, Deep-sea Fisheries and Vulnerable Marine Ecosystems, Leiden: Martinus Nijhoff Publishers, Publications on Ocean Development Series, vol. 75, 2013; P. Allott, “Power Sharing in the Law of the Sea”, American Journal of International Law, vol. 77, 1983, pp. 1-30; R. Barnes, “The Law of the Sea Convention and the Integrated Regulation of the Oceans”, International Journal of Marine and Coastal Law, vol. 27, 2012, pp. 859-866; D. Attard, M. Fitzmaurice, N. A. Martínez Gutiérrez, Chapter 9 in “The High Seas”, Oxford Scholarly Authorities on International Law, The IMLI Manual on International Maritime Law, vol. I: The Law of the Sea, 2014, available at http://opil.ouplaw.com/view/10.1093/law/9780199683925.001.0001/law- 9780199683925-chapter-9, last visited 01/09/2020; D. Guilfoyle, “The High Seas” in D. Rothwell, A. Oude Elferink, K. Scott, and T. Stephens, The Oxford Handbook of the Law of the Sea, Oxford: Oxford University Press, 2015. 141 to their geographical location, the high seas are open to all states, including landlocked52. Such states cannot take part in cable construction projects in a manner similar to coastal states due to impossibility of cable landing on the territory of a landlocked state. However, they might be interested in participating in submarine cable projects for their future needs. Once a cable is landed ashore, signals are further transmitted by means of terrestrial cable systems coming to territories of landlocked states. For instance, in Africa there are numerous terrestrial cables transmitting signals through the continent and many terrestrial cables are currently under construction53. In virtue of terrestrial cable systems, such states as Zambia, Botswana, and Zimbabwe are connected to submarine networks. It allows increasing the Internet speed and raising the level of connection with the external world. In Europe, several Internet exchange centers distributing the Internet across the country are also located in landlocked states. For instance, in Luxembourg54, Liechtenstein55 and Austria56. Therefore, all states parties to the UNCLOS are granted the right to lay submarine cables in the high seas. b. Limits of the right of states to lay submarine cables in the high seas

Article 87 (2) requires laying submarine cables with due regard to interests of other states exercising freedoms of the high seas. It is especially emphasized that activities on the high seas should be

52 UNCLOS, Article 125. 53 See African Undersea and Terrestrial Fibre Optic Cables map, available at https://afterfibre.nsrc.org/, last visited 01/09/2020. 54 See the website of Lu-cix, an Internet exchange company based in Luxembourg, section “Who we are”, available at http://www.lu-cix.lu/who-are-we.html, last visited 01/09/2020. 55 See the website of Rheintal, an Internet exchange company based in Liechtenstein, available at https://www.rheintal-ix.net/, last visited 01/09/2020. 56 See the website of SAIX, an Internet exchange company based in Salzburg, available at https://www.saix.at/, last visited 01/09/2020. 142 exercised with due regard to activities performed in the international seabed area.

Activities in the high seas are listed in Article 87 (1), and in practice representatives of different maritime enterprises work together to achieve due regard when performing mutual activities in the high seas. There are agreements concluded between fishermen and submarine cables companies on different aspects such as releasing commercial fishermen from liability for damage to a cable system, establishing funds to compensate commercial fishermen for the replacement of cable-related fishing gear losses, and minimizing interruption of commercial fishing activities caused by cable laying procedures57. Submarine cable operators also have a long history of negotiating agreements with other offshore infrastructure owners such as pipelines owners to manage the joint use of maritime areas. Crossing agreements with pipelines and other cables are concluded in this case58. With regard to the freedom of the high seas to construct artificial islands and other installations, such as, for instance, offshore renewable energy infrastructure, there have been no agreements with submarine cable operators yet. However, the cable industry expressed its interest in concluding such agreements59.

57 See, for instance, Agreement between and among the Oregon Fishermen’s Undersea Cable Committee, Inc., MFS Globenet, Inc. and WCI Cable Inc., signed 11 of January 2000, available at http://www.ofcc.com/mfsg_web_version.pdf, last visited 01/09/2020. 58 Communications Security, Reliability and Interoperability Council, Working Group on Submarine Cable Routing And Landing, “Final Report – Protection of Submarine Cables Through Spatial Separation”, December 2014, pp. 1-72, p. 54, available at https://transition.fcc.gov/pshs/advisory/csric4/CSRIC_IV_WG8_Report1_3De c2014.pdf, last visited 01/09/2020; See The United Kingdom Crown Estate official website, section “Offshore wind farms and electricity export cables – crossing agreements”. The Crown Estate requires written confirmation from the party which cable is crossed by another cable to ensure that legal interests of the crossed party are protected, available at https://www.thecrownestate.co.uk/energy-minerals-and-infrastructure/offshore- wind-energy/working-with-us/crossing-agreements/, last visited 01/09/2020. 59 Communications Security, Reliability and Interoperability Council, Working Group 8 Submarine Cable Routing And Landing, “Final Report – Protection of Submarine Cables Through Spatial Separation”, December 2014, p. 54, available at 143

Some international organizations have also noticed and addressed the issue of possible intersections of different activities in the high seas. For instance, the Memorandum of Understanding was signed between the International Hydrographic Organization (IHO)60 and the ICPC61, providing the cooperation of two organizations in terms of mapping the actual position of submarine cables and setting uniform charting standards to avoid their breaks caused by other maritime activities. Provided that the central area of work of the IHO is standardizing hydrographic data and facilitating its share and the ICPC’s aim is to develop and promote recommendations on different aspects relating to submarine cables, the two organizations united their efforts following the same aim to facilitate cable-related activities.

The list of freedoms exercised in the high seas is non-exhaustive. That might be concluded from the wording inter alia used here, providing that theoretically any activity should be considered when laying submarine cables. Although under the Convention on the High Seas the freedom to lay submarine cables was unlimited62, the UNCLOS prescribes to give due attention to interests of other states. c. Mechanisms for the protection of submarine cables in the high seas

https://transition.fcc.gov/pshs/advisory/csric4/CSRIC_IV_WG8_Report1_3De c2014.pdf, last visited 01/09/2020. 60 For more information see the website of International Hydrographic Organization, available at https://www.iho.int/srv1/index.php?option=com_content&view=article&id=296 &Itemid=287&lang=en, last visited 01/09/2020. 61 Memorandum of understanding between the International Cable Protection Committee and International Hydrographic Organization, cocluded 18 of April 2016, available at https://www.iho.int/mtg_docs/circular_letters/english/2016/Cl18e.pdf, last visited 01/09/2020. 62 A. Proelss, United Nations Convention on the Law of the Sea…, op.cit., p. 682. 144

Despite submarine cables are mainly located on the deep seabed, far from the coasts and human’s activities, they are vulnerable and suffer from regular damages. The majority of cable breaks occur in the vicinity of a shore, in shallow waters where vessel’s anchors can easily reach the seabed and damage a cable. Thus, most of the failures and cable breaks occur in the territorial sea or in archipelagic waters as well as on continental shelves. Damages are frequently caused by anchors and fishing gears when vessel’s crew does not properly consider the vicinity of submarine cables63. Nevertheless, there is also a possibility to cause damage to a cable in the high seas. Bottom trawling, for instance, might cause damage to cables even in deep waters of the high seas64. It raises particular concerns provided that in deep water submarine cables are not buried. They rest on the seabed freely, and an attempt to lift a cable when caught by an anchor usually leads to damage. However, these failures are preventable as they depend on ships and their crew. Submarine cables are clearly marked on nautical charts, and the majority of faults can be avoided if a master of the vessel controls the surroundings and keeps in mind possible cable faults.

Apart from damage by anchors and fishing nets, submarine cables might also be subject to such threats as terrorism and theft. These threats pose a danger due to their unpredictability and unexpected character. As for the first threat, at the moment there have been no such incidents reported in the academic literature. However, some papers raise attention to it, indicating them as potentially possible65. Regarding the second threat, cases of theft of submarine cables have already been encountered in practice. For instance, in China, around one hundred and ninety thousand incidents of cable theft were

63 S. Drew, A. Hopper, “Catch fish, not Cables…”, op.cit., p. 19. 64 S. Drew, A. Hopper, “Catch fish, not Cables…”, op.cit., p. 24. 65 See M. Matis, The Protection of Undersea Cables: A Global Security Threat, United States Army War College, 2012, pp. 1-32, p. 9; R. Beckman, “Submarine Cables…”, op. cit., p. 14; M. Sechrist, “Cyberspace in Deep Water: Protecting Undersea Communication Cables by Creating an International Public-Private Partnership”, Harvard Kennedy School, 23 of March 2010, available at https://www.belfercenter.org/sites/default/files/legacy/files/PAE_final_draft_- _043010.pdf, last visited 01/09/2020. 145 recorded in 2006. In South Africa, the Power Utility Eskom counted lost cables valued at R20 million66. In 2007, Vietnamese citizens stole submarine cables, assuming that the copper from which cables are made would be of particular value and could be sold. They also stole fibre optic amplifiers necessary for the operation of cables. In total, the recovery of stolen submarine cables took seventy-nine days67.

In this regard, it is worth reconsidering and examining the proposal of the United States that in 1869 developed a draft Convention on the protection of submarine cables proposing to view acts of submarine cables’ theft in the high seas as acts of piracy68. At that time, such initiative was not supported by states. Thus, a thought- provoking matter to examine would be the possibility to address theft of submarine cables and the absence of penalties for it in international law through the piracy nowadays. The concept of piracy is formulated in the UNCLOS and in principle may apply to submarine cables theft. Based on the wording of the convention, piracy is:

“any illegal acts of violence or detention, or any act of depredation, committed for private ends by the crew or the passengers of a private ship or a private aircraft, and directed: …(ii) against … property in a place outside the jurisdiction of any State”69.

Theoretically, in the high seas submarine cables might be considered as being protected by this article. In the case of submarine cables theft, based on the provisions of the UNCLOS, this act can be considered as an act of piracy. However, there is no state practice on the use of Article 101 for qualifying theft of submarine cable as an act of piracy so far. It appears that the practice of using this article for cases of cable theft is not appropriately formed yet due to the

66 K. Ekwere, “Submarine Cables and the Marine Environment…”, op.cit., p. 180. 67 See K. Ekwere, “Submarine Cables and the Marine Environment…”, op.cit., p. 180; “Vietnam makes more arrests over submarine cable theft”, Brunei Press, 25 of June 2007, available at http://www.brusearch.com/news/11336, last visited 01/09/2020. 68 L. Renault, “The protection of submarine telegraphs…”, op.cit., p. 3. 69 UNCLOS, Article 101. 146 small number of cases and consequences of such thefts not considered as grave to examine them as an international law crime. Mistreatment of submarine cables is not given the same significance such as, for instance, war crimes or crimes against humanity. However, should a serious case arise in practice this concept in the framework of the law of the sea might be triggered and considered as a tool for reaction.

There are certain legal mechanisms for the protection of submarine cables foreseen by the UNCLOS that are currently used in practice. They apply not only to the high seas but also to other maritime spaces since under these mechanisms states are obliged to establish certain norms in their national legislation. When establishing them, states address subjects (private companies or individuals) under their jurisdiction to regulate activity relating to submarine cables in any of the internationally recognized maritime spaces70. In addition, when drafting rules of domestic legislation states usually intend to cover all maritime areas under international law. Therefore, the idea prescribed by the UNCLOS receives implementation in national legislation and gains an extension effect being incorporated to national law applicable in different maritime areas.

Although formally protection mechanisms are attributed to different maritime spaces, they are considered in this section since they are placed in Part VII of the UNCLOS under the title “High Seas”. These mechanisms imply establishing certain obligations and liabilities for subjects causing break or damage to submarine cables or attempting to disrupt international communications.

1) The obligation to define a break or injury to submarine cables in national legislation as a punishable offence

70 For instance, a state may establish requirements in its domestic legislation in relation to the safety of cable ships sailing under its flag. These requirements apply to cable ships even if they sail in maritime spaces other than maritime spaces under the jurisdiction of their flag state. 147

The UNCLOS imposes an obligation on states to enact laws and regulations providing liability for damage to submarine cables or engagement in conduct which is calculated or likely to result in damage. The provision reads as follows:

“Every State shall adopt the laws and regulations necessary to provide that the breaking or injury by a ship flying its flag or by a person subject to its jurisdiction of a submarine cable beneath the high seas done willfully or through culpable negligence, in such a manner as to be liable to interrupt or obstruct telegraphic or telephonic communications, and similarly the breaking or injury of a submarine pipeline or high-voltage power cable, shall be a punishable offence”71.

However, the UNLOS also emphasizes that if a break or injury of submarine cable was caused by persons who acted merely with the legitimate purpose of saving their lives or their ships, after having taken all necessary precautions to avoid such break or injury, this should not be qualified as an offence72. The extent to which such conduct might be considered as an offence is up to a coastal state provided that the UNCLOS does not specify any particular measure to be taken when establishing responsibility in national legislation.

This provision is not an invention of the UNCLOS and dates back to Article 2 of the 1884 Convention and further to Article 27 of the 1958 Convention on the High Seas where similar provisions were included. The main provision of the Article 113 of the UNCLOS is supplemented by the clause that not only a break of a cable but also conduct calculated or likely to result in a cable break should also be covered by this article. The idea of such an extension is to restrict

71 Article 113 refers to “telegraphic or telephonic communications”, and similarly the breaking or injury of “high-voltage power cable”. This covers two types of submarine cables: telecommunications and power submarine cables addressed by this thesis. However, this shall not be limited by these types. In principle, this provision needs to be interpreted broadly and apply to all other types of cables should any appear in the near future. See M. Nordquist, S. Nandan, S. Rosenne (eds.), United Nations Convention on the Law of the Sea…, vol. III, op. cit., p. 270. 72 UNCLOS, Article 113. 148 anchoring, marine scientific research, and other activities in the vicinity of submarine cables that can affect cables73.

A coastal state shall adopt laws and regulations qualifying damage to cables as an offence only in respect to ships flying its flag or persons under its jurisdiction. A coastal states’ legislation may not apply to nationals of another state. However, in the process of negotiations on this article Malta proposed that cables shall be protected “anywhere in ocean space”, not only beneath the high seas. It was explained by the need “to protect international communications to the maximum extent”74.

This issue is worth examining in the context of the so-called “flag of convenience” problem when a vessel is registered under the flag of a state that is convenient for this vessel. The convenience means simple registration procedure, relatively low costs of business maintenance and domestic legislation considered in favor of a vessel owner. However, such a vessel does not have strong bonds with this state, the connection is more formal then practicable. States of convenient flags are interested in receiving benefits from incorporation in their jurisdiction but not in further development of national legislation on this matter. Furthermore, states of convenient flags often have limited and poorly developed domestic legislation that is also convenient for vessels owners since they can interpret gaps and inconsistencies in their favor. It decreases the development of law of the sea and the legal regime of submarine cables in particular.

2) The obligation to repair damaged submarine cable

The obligation to repair damaged submarine cable is one of the oldest norms relating to submarine cables. It first appeared in Article 4 of the 1884 Convention and was subsequently reflected in the 1956 ILC’s Articles concerning the Law of the Sea with commentaries and later in the Convention on the High Seas, Article 28. During the

73 A. Proelss, United Nations Convention on the Law of the Sea…, op.cit., p. 783. 74 A/AC.138/53, Article 28, reproduced in SBC Report 1971, at 105, 127 (Malta). 149 drafting process on the UNCLOS several suggestions defining liability for causing damage to submarine cables from broad to narrow context were proposed75. For instance, Malta submitted that costs relating to the restoration of the marine environment should also be included in the notion of “costs of repairs”76 extending the framework of liability. In the final text, it was agreed to limit damage to the costs of repairs. It appears that cable owner whose cable was damaged cannot demand a replacement of a cable, profit loss, or any other damages except for costs of repairs. The aim of this provision is to restore the situation as it was before cable damage but not to give cable owner rights to additional claims asserted with the main contention. It could also be considered in the context of a global public interest meaning that the primary purpose of repairing a cable is to restore its functionality and ability to transmit signals. The obligation of an offender to pay for repairs is logical in the context of fast reestablishment of service. All other claims can be considered as additional and therefore, not covered by the UNCLOS. For instance, attorney fees spent by the owner in a trial process can be claimed from the counterparty as an ordinary practice in the procedural law. However, actual compensation for damage to submarine cable in each concrete case depends on domestic law. State exercising jurisdiction on cable owners and offenders determines procedures and grounds to bring a particular claim to domestic court. In practice, to speed up the process owner usually performs all repair works itself and subsequently claims costs of repairs from offender who caused the damage.

Article 114 also deserves attention in connection with the obligation to adopt measures in national legislation. It establishes the liability to compensate cable owner for the costs of repairs considering that damage is caused during the laying or repairing of another cable. In

75 See, for example, a working paper by Malta A/AC.138/53, Article 28, reproduced in SBC Report 1971, at 105, 127 (Malta); The Main Trends Working paper A/CONF.62/L.8/Rev.1 (1974), Annex II, Appendix I [A/CONF.62/C.2/WP.1], Provision 151, III Off. Rec. 93, 107, 131 (Rapporteur- general) [Main Trends]. 76 Second Committee UNCLOS I, Summary Records of the 26th-30th Meetings, UN Doc. A/CONF.13/C.2/SR.26-30 (1958), OR VI, 72, 87-90. 150 contrast to Article 113 providing with regulation of general cable faults caused without any connection to submarine cable industry and performed by any subject, Article 114 foresees the situation when damage to a cable was caused during the laying of another cable, meaning by professional players in submarine cables industry. It is implied that subjects having submarine cables as their primary area of business should be acquainted with other submarine cables located nearby and have a precaution when exercising their activity. In this case, potentially the punishment established in domestic legislation should be stricter since the failure accounts for subjects professionally involved in the cable industry and that should be aware of the possibility to cause damage to cables.

3) The obligation to indemnify for loss incurred in avoiding injury to submarine cables

The content of Article 115 as well as of Article 114, first appeared in the 1884 Convention and since that time was not significantly changed. Article 115 in continuation to the liability for cable damage provides that:

“Every State shall adopt the laws and regulations necessary to ensure that the owners of ships who can prove that they have sacrificed an anchor, a net or any other fishing gear, in order to avoid injuring a submarine cable or pipeline, shall be indemnified by the owner of the cable or pipeline, provided that the owner of the ship has taken all reasonable precautionary measures beforehand”.

It is a logical continuation of exercising activities by other users of the sea taking place in the same area. It is suggested that other users may not only be liable for causing destruction to submarine cables but also could save them from damage. Therefore, Article 15 justifies the following idea. Occasionally it appears to be more reasonable to abandon an anchor or other fishing gear which was tangled in a submarine cable rather than making attempts to release or lift it. Damages to vessel that “caught” a cable and to a cable owner in connection with damage to his cable could be less than the risk of damage to the cable by improper attempts to save it. At the same time, entanglement with a cable should not be overestimated. If it

151 appears to be effortless to make an anchor, a net, or any other fishing gear free from a cable but master of the vessel intentionally chooses to “sacrifice” it instead, provisions of this article shall not apply although it is not always clear how to evaluate the proportionality and relevance of the situation. The final decision is on a master who after analyzing all the circumstances and using his best knowledge should come to the most appropriate conclusion.

If a master of the vessel could adequately prove that he sacrificed its ship’s equipment limited to anchor, net, or any fishing gear, he should be indemnified by a cable owner. There is a significant restriction on what is subject to indemnification: an anchor, a net, or any fishing gear. These instruments are widely used by fishing ships (except for the anchor attributed to any vessel). Other seabed activities such as drilling, mining, scientific research, and equipment used for these purposes, are not addressed by the UNCLOS provided that they would not be indemnified by the owner. In the meantime, this hypothetically could happen when sacrificed equipment is not an anchor but, for instance, research instrument used for conducting marine scientific research. Although the majority of cable faults are attributed to fishing vessels, other activities performed in the sea should also be taken into consideration. The notion “sacrificed” is worth examining as well. The word itself defines something that is of importance for the subject who immolated and left it following some other purpose. The sense of the word is relatively strong and means that serious circumstances should occur to sacrifice the vessel’s equipment. Usually cables are well marked on nautical charts so that fishermen and all other subjects are aware of their location. However, due to tidal activities, storms, landslides affecting the relief of the seabed submarine cables can be moved from their initial location. In this case, a vessel’s owner who did not expect to find submarine cable but managed to take all measures to avoid cable break when it was discovered can be considered as an addressee of this article. General idea is that cable appearance for a master of the vessel should be unexpected and unpredictable or external conditions should prevent from avoiding the contact with a submarine cable (reduced visibility,

152 storm, or other adverse weather conditions). Otherwise, it would not be considered a sacrifice.

Although articles 113, 114 and 115 of the UNCLOS regulate important responsibility issues, they cannot be considered progressive since they have not been properly implemented to national legislation of states and successful application of them depends on domestic laws. The UNCLOS established a general framework and left a wide scope of regulation to domestic legal orders. Chapter VI addresses this issue in more detail.

4) Other means to protect submarine cables

States are also entitled to take other measures besides establishing the responsibility for damaging submarine cables in national legislation. For instance, it is possible to establish “cable corridors” or “protection zones” prohibiting any activity (anchoring, fishing, exploration of seabed resources, et cetera) that could damage submarine cables in maritime areas under the sovereignty of coastal states or where they exercise jurisdictional rights. The UNCLOS does not specify this measure but together with its provisions can facilitate the development of submarine cables legal regime. Some states already use this mechanism in practice. The experience of declaring protective zones appears to be a successful tool for states with highly intensive marine activities such as Australia and New Zealand. However, it is a universal instrument that might be used by any other coastal or archipelagic state.

As for the possibility to apply the instrument of protection zones in the high seas, this question is controversial. Although it appears to be a successful tool proved in practice and might contribute to the development of the legal regime of submarine cables, the high seas is the area not subject to jurisdiction of any state. Therefore, the unilateral establishment of a cable protection zone claiming

153 sovereignty of a state on such zone is prohibited77. The establishment of protection zones in the high seas around submarine cables is possible under cooperation and giving due regard to interests of other states. Similar idea of protection areas to preserve the marine environment has been employed on the same basis and had a success in international law78. Nevertheless, if a cable protection zone is planned to be settled, for instance, in a busy navigation area it is unlikely to be welcomed by other states exercising navigation rights there. In the case of conflict and impossibility to reach a solution the dispute may become a matter of international arbitration. Therefore, all participating interests must be evaluated and the possibility to set up cable protection zones in the high seas might be an option for the present law of the sea.

One more measure to protect submarine cables not mentioned by the UNCLOS directly might be cooperation with other users of the seabed. In particular, development of joint agreements, best practices, memorandums of understanding and other legal instruments. They facilitate common activities and help keeping all actors updated on relevant information about mutual plans. Such agreements are concluded between fishermen organizations, regional submarine cable committees and cable companies operating in the same area79.

2. International Seabed Area

77 B. de Sousa Fernandez, “Imposing an international environmental jurisdiction” in P. Chaumette, Transforming the Ocean Law by Requirement of the Marine Environment Conservation, Madrid: Marcial Pons, 2019, pp. 207-219, p. 210. 78 For instance, the Pelago Sanctuary originally was established by Italy, Monaco and France and partly covered the high seas. Later this zone was approved by Barcelona Commission under a special protocol. See Ibid, p.217. 79 See Agreement between and among the Oregon Fishermen’s Undersea Cable Committee…, op.cit.; Council for Security Cooperation in the Asia Pacific, Memorandum No.24 “Safety and Security of Vital Undersea Communications Infrastructure”, 2014, available at http://www.cscap.org/uploads/docs/Memorandums/CSCAP%20Memorandum %20No.24%20-%20Safety%20and%20Security%20of%20Vital%20Undersea.pdf, last visited 01/09/2020. 154 a. The right to lay submarine cables in the Area

The Area is a maritime space defined as:

“the seabed and ocean floor and subsoil thereof, beyond the limits of national jurisdiction”80.

There are no provisions in Part XI “The Area” directly addressing submarine cables. However, Article 112 of Part VII “High Seas” applies here. Article 112 (1) of the UNCLOS provides all states with the freedom to lay submarine cables in the Area as follows:

“All States are entitled to lay submarine cables and pipelines on the bed of the high seas beyond the continental shelf”.

Although this article is placed in Part VII of the UNCLOS devoted to the high seas, it is meant to apply to the international seabed area. In concrete, to the ocean floor beyond national jurisdictions provided that the high seas regime applies to the water column and international seabed area regime applies to the subsoil of the same area. b. Limits of the freedom to lay submarine cables in the Area

This freedom is not absolute and has restrictions similar to those relating to submarine cables activities in other maritime areas. Article 112 (2) of the UNCLOS requires states planning to lay cables in the Area to pay due regard to already existing submarine cables and not to interfere with the repair possibilities of such cables. It does not mention this rule directly but refers to Article 79 (5) from Part VI “Continental Shelf” where such rule appears. Article 112 (2) reads as follows:

80 UNCLOS, Article 1 (1). On the Area see: E. Salamanca Aguado, La zona internacional de los fondos marinos: Patrimonio Común de la Humanidad, Madrid: Dykinson, 2003; G. Albiol Biosca, El régimen jurídico de los fondos marinos internacionales, Madrid: Tecnos, 1984; B. H. Oxman, “The High Seas and the International Seabed Area”, Michigan Journal of International Law, vol. 10, Issue 2, 1989, pp. 526-542.

155

“Article 79, paragraph 5, applies to such cables and pipelines”.

In continuation, Article 79 (5) states:

“When laying submarine cables or pipelines, States shall have due regard to cables or pipelines already in position. In particular, possibilities of repairing existing cables or pipelines shall not be prejudiced”.

Concerning laying of submarine cables in the Area, it is recognized in the international community that cable-related activities may have possible intersections with other seabed activities in areas where they are performed. Some international institutions have also addressed this issue. For instance, the ICPC and the ISA signed the Memorandum of Understanding where they emphasized that:

“Increased cooperation between the ICPC and the Authority would help to avoid potential conflicts between the laying and maintaining of submarine cables and current and future activities in the Area”.81

These authorities agreed to consult each other, provide with information, take part in joint meetings and seminars, and by other means facilitate mutual cooperation.

Irrespective of maritime area where an incident affecting submarine cables occurs, Article 297 (1)(a) specifies that disputes concerning freedom to lay submarine cables are subject to the dispute settlement procedures under Part XV “Settlement of Disputes” if it concerns the application and interpretation of the convention. If a coastal state acts in contradiction to the UNCLOS and breaches the freedom of other states to lay submarine cables in any maritime zone, this article allows states bringing this dispute to a compulsory binding settlement. In general, the UNCLOS argues for peaceful settlement of disputes using means chosen by parties82. However, disputes concerning submarine cables (along with navigation, marine scientific research and some other) constitute an exception. In this

81 Memorandum of understanding between the ICPC and the ISA, op.cit., section “Whereas”. 82 UNCLOS, Article 280. 156 case, not only tools chosen by parties and third-party means such as mediation or conciliation, but compulsory litigation might be used.

The analysis of the UNCLOS provisions dedicated to submarine cables reflects the whole legal regulation of submarine cables by the convention. The amount of provisions is relatively small leaving a certain range of issues unattended. Deficiencies of the modern legal regime of submarine cables arising in different maritime areas in connection with submarine cables, issues not covered by the UNCLOS and gaps of the current legal regime are discussed in chapter VII. The division of legal regulation of submarine cables by maritime zones is not the final step in the legal regime of submarine cables. This stimulates the development of further regulation. In particular, within other international law agreements extending the scope of the UNCLOS; national law of member states as an implementation of the UNCLOS provisions; and legal instruments used by private law. These dimensions are examined in next two chapters.

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CHAPTER V

RELEVANT INTERNATIONAL AGREEMENTS AND RESOLUTIONS OF INTERNATIONAL ORGANIZATIONS ON SUBMARINE CABLES

Apart from the UNCLOS there are several other international agreements affecting the legal regime of submarine cables. They cover various aspects relating to them. For instance, operations of cable ships engaged in laying or repairing cables, environmental aspects connected with cable processes, and other areas of uses of the seabed. They were adopted at different times, have distinct legal force, and a disparate amount of members.

This chapter examines additional international legal instruments in the chronological order and evaluates each of them in two dimensions. First, the content of agreement in relation to submarine cables is provided. Second, the contribution to the legal regime by this agreement is analyzed. The aim of this chapter is to emphasize that other relevant international agreements and resolutions of international organizations on submarine cables supplement the legal regime of submarine cables provided under the UNCLOS and allow examining the subject of submarine cables in more detail.

A) CONVENTION ON THE INTERNATIONAL REGULATIONS FOR PREVENTING COLLISIONS AT SEA, 1972 (COLREGs)

Before the adoption of the COLREGs no standardized rules on navigation existed. Several international conventions reflected distinct practices with various customs and national implementations followed by ships. Consequently, discrepancies and even direct contradictions resulted to regular collisions.

159

The COLREGs was designed to update and replace the Collisions Regulations, 19601 by adopting several initiatives aimed at increasing the safety of navigation in international waters. The purpose of the convention is to regulate navigational activities and prevent the risk of collisions by ships. It prescribes certain rules of behavior and covers all seagoing vessels navigating in the high seas and all waters connected to the high seas.

1. Subject of COLREGs in relation to submarine cables legal regime

This international convention does not refer to submarine cables directly. Nevertheless, cable ships engaged in cable laying operations fall within the scope of the convention. The most important provision set by the COLREGs is a definition of cable ship. Activities performed by a cables ship are considered differently from those of other ships due to a special status of ships performing cable-related activities. The convention emphasizes that a vessel engaged in “laying, servicing or picking up a navigation mark, submarine cable or pipeline”2 is considered to be a vessel limited in its ability to maneuver. It provides that a cable ship is a:

“vessel which from the nature of her work is restricted in her ability to manoeuvre as required by these Rules and is therefore unable to keep out of the way of another vessel”3.

This rule was established for all vessels operating in the vicinity to indicate that cable ships cannot move fast and they require more time to prevent a collision. Therefore, other vessels shall pay due attention to such ships and shall not come unreasonably close so as not to provoke the collision. It appears to be highly relevant for small fishing boats that often approach cable ships creating a danger

1 International Regulations for Preventing Collisions at Sea (COLREGs 1960), concluded 17 of June 1960, entered into force 1 of September 1965, TIAS 5813, UKTS 23 (1966). 2 COLREGs, Rule 3 (i). 3 COLREGs, Rule 3 (g). 160 to themselves, as well as to cable ship operations4. The history knows cases of collisions even with large vessels. For instance, in 1945 the British cable-laying ship Cambria sunk in the Montevideo harbor as a result of the collision with Uruguayan steamer Rodriguez Luis5.

To prevent collisions, the COLREGs establish requirements for the sound and light signals given by the cable ship to all other vessels6. According to Rule 27, vessels limited in maneuvering should set three all-round lights in a vertical line where they can best be seen. The upper and lower of these lights should be red, and the middle one should be white. Three signs should be located on a vertical line in the most prominent place. The upper and lower of these signs should be balls, and the middle one a rhombus. When making a way through the water, masthead lights, sidelights, and stern light, et cetera should be added. All vessels including both “ships with a power-driven” as well as “ships engaged in fishing” shall keep a distance from cable ships.

2. Contribution of COLREGs to the legal regime of submarine cables: safety of navigation of cable ships

The UNCLOS provides with the process of laying and repairing submarine cables. However, it does not specify the details. The COLREGs extend the framework of the protection to submarine cables by ensuring safety of cable ships. Provided that safety and continuous operations of cable ships might be considered as a part of the whole process of cable-related activities, the COLREGs aim

4 R. J. Rapp, “Protection for Vessels Engaged in Servicing Submarine Cables Proposed”, International Cable Protection Committee materials, Brief to Navigation Safety Advisory Council, November 28, 2012, Tampa, pp. 1-23, p. 16, available at https://homeport.uscg.mil/Lists/Content/Attachments/755/Protection%20of% 20Vessels%20Engaged%20in%20Servicing%20Submarine%20Cables%20- %20November%202012%20meeting.pdf, last visited 01/09/2020. 5 B. Glover, “CS Cambria”, History of the Atlantic Cable & Undersea Communications from the first submarine cable of 1850 to the worldwide fibre optic network”, The Atlantic Cable website, pp. 1-10, p. 5, available at http://atlantic-cable.com/Cableships/Cambria/, last visited 01/09/2020. 6 COLREGs, Rule 7. 161 to develop the legal regime of submarine cables established by the UNCLOS by setting the rules of a distance that all other vessels should keep from a cable ship. These rules resemble the 1884 Convention. However, in contrast to it COLREGs’ provisions do not establish a minimum distance that all other vessels should keep from the cable ship.

Coastal states that are parties to COLREGs when implementing obligations under the UNCLOS and establishing the legal regime of submarine cables in their national legislation should consider provisions of the COLREGs given that they apply in same maritime areas. In the high seas firsthand and in all other connected maritime zones. The COLREGs specifies that:

“These Rules shall apply to all vessels upon the high seas and in all waters connected therewith navigable by seagoing vessels”7.

Waters navigable by seagoing vessels should be considered as territorial sea, straits used for international navigation, and archipelagic waters8. States when regulating the legal regime of submarine cables in their territorial sea or archipelagic waters although having the right to establish special rules on prevention of collisions shall make the regulation to be in compliance with the rules of COLREGs as close as possible:

“Nothing in these Rules shall interfere with the operation of special rules made by an appropriate authority for roadsteads, harbours, rivers, lakes or inland waterways connected with the high seas and navigable by seagoing vessels. Such special rules shall conform as closely as possible to these Rules”9.

COLREGs’ provisions apply when a cable ship proceeds to its base port as well as when a cable ship is located in the high seas. However, a special exception regarding traffic separation scheme is

7 COLREGs, Rule 1 (a). 8 M. Nordquist, S. Nandan, J. Kraska, UNCLOS 1982 Commentary: Supplementary Documents, Leiden: Martinus Nijhoff Publishers, 2012, p. 775. 9 COLREGs, Rule 1 (b). 162 foreseen by COLREGs for cable ships restricted in the ability to maneuver. Traffic separation schemes are considered to be an important tool established by the IMO for managing vessels to proceed safely and without accidents. It is also relevant for cable ships as vessels restricted in maneuvering are exempted from this scheme due to their limited ability to move.

The COLREGs prescribe as follows:

“(e). A vessel other than a crossing vessel or a vessel joining or leaving a lane shall not normally enter a separation zone or cross a separation line except: <…>

(l). A vessel restricted in her ability to manoeuvre when engaged in an operation for the laying, servicing or picking up of a submarine cable, within a traffic separation scheme, is exempted from complying with this Rule to the extent necessary to carry out the operation”10.

Generally, cable ships performing cable operations are subject to regulations for preventing collisions at sea. However, due to their special role, there are some exceptions provided by international law according to which cable ships are exempted from entering a separation zone.

The COLREGs contribute to the UNCLOS regime on safety of navigation and activities performed by cable ships. It allows states having a broader vision on successful implementation and considering not only the UNCLOS but also international agreements complementing it. The provisions of COLREGs affect coastal and archipelagic states relating to the establishment of the legal regime of submarine cables in the areas under their jurisdiction. Similarly, cable industry should also follow these rules and benefit from their exemptions since the on-site compliance with COLREGs is the obligation of the vessel’s crew and master of a vessel.

10 COLREGS, Rule 10. 163

B) CONVENTION ON THE PREVENTION OF MARINE POLLUTION BY DUMPING OF WASTES AND OTHER MATTER, 1972 AND PROTOCOL TO THIS CONVENTION, 1996

The Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, 197211 is one of the first global conventions to protect the marine environment from human activities. Its objective is to:

“improve protection of the marine environment by encouraging States with a common interest in particular geographical areas to enter into appropriate agreements supplementary to this Convention”12.

The 1996 London Protocol to this convention13 was aimed to modernize the convention and reduce dumping activities to the lesser possible extent. Thus, the Protocol prohibited all dumping, except for feasibly acceptable wastes specified in the list. A general objective of the convention and its protocol is to control all sources of marine pollution and to prevent pollution of the sea by regulating the dumping of waste materials into the sea14.

1. Subject of the Convention and its Protocol in relation to submarine cables legal regime

Submarine cables as an environmentally friendly activity shall not generate pollution in areas where they remain operative. The convention contains two provisions relevant for the submarine

11 Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, concluded 13 of November 1972, entered into force 30 of August 1975, 26 UST 2403, 1046 UNTS 120, 11 ILM 1294 (1972). 12 Ibid, preamble. 13 1996 Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, adopted 7 of November 1996, entered into force 24 of March 2006, 36 ILM 1 (1996). 14 IMO website, section “London Convention and Protocol”, available at http://www.imo.org/en/OurWork/Environment/LCLP/Pages/default.aspx, last visited 01/09/2020. 164 cables regime. First is the requirement to refrain from leaving waste generated in the course of operation of a cable ship. Article 12 of the convention obliges states to:

“promote, within the competent specialized agencies and other international bodies, measures to protect the marine environment against pollution caused by: … (c) wastes generated in the course of operation of vessels, aircraft, platforms and other man-made structures at sea”.

Second is the requirement not to cause dumping to the marine environment. Dumping is defined by the convention as follows:

“(a) “Dumping” means: (i) any deliberate disposal at sea of wastes or other matter from vessels, aircraft, platforms or other man-made structures at sea; (ii) any deliberate disposal at sea of vessels, aircraft, platforms or other manmade structures at sea”.15

However, the convention prescribes that dumping does not include:

“placement of matter for a purpose other than the mere disposal thereof, provided that such placement is not contrary to the aims of this Convention”16.

It is worth noting that the convention applies to all maritime areas except for internal waters17.

2. Contribution of the Convention and its Protocol to the legal regime of submarine cables: marine pollution

In the context of the requirement to refrain from leaving waste generated in the course of operation of a cable ship, submarine cables should be considered as man-made structures at sea. The process of cable laying and maintenance includes operation of cable ships. Thus, when a cable is laid or in the process of maintenance the

15 Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, op.cit., Article 3. 16 Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, op.cit., Article 3 (b). 17 Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, Article 3 (3). 165 owner of this submarine cable has the responsibility to ensure that no pollution is caused to the marine environment. Namely, that no garbage is left after operations with submarine cables. For instance, to manage repair of damaged submarine cable it should be lifted onboard the cable ship and restored on the surface before coming back to the seabed. Occasionally repeaters, amplifiers, or any other equipment used in the process of laying, repairing, or removal of a cable might be left on the seabed. Therefore, no waste shall be left on the seabed and that is the responsibility of cable owner to control its fulfillment.

Regarding the second requirement not to cause dumping to the marine environment, submarine cables owners should also ensure that no dumping causing harm to living organisms occur during cable operations. In particular, that cable ships do not dispose harmful substances while in service.

The dumping does not include placement of matter for a purpose other than the mere disposal thereof that might apply to submarine cables provided that the purpose of laying cables on the seabed is not “mere disposal thereof”. The purpose is, on the contrary, a placement of them by intent to ensure telecommunications facilities or electricity supply. Thus, cable ships placing a cable on the seabed cannot be considered as performing dumping and causing harm to the marine environment.

Generally, submarine cables are mentioned in the context of dumping and that should be taken into consideration when analyzing this activity. In 1975 on the first meeting of contracting parties states have already noticed that submarine cables in position need to be considered when selecting a dumping site (according to the convention and its protocol some limited dumping is still legal). Areas crossed by currently utilized submarine cables were pointed as undesirable18. Thus, submarine cables cannot be considered as an activity of dumping itself.

18 See International Atomic Energy Agency Information Circular, INFCIRC/205/Add. 1, 10 of January 1975, available at 166

Although the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter 1972 was adopted before the UNCLOS, preparatory works on the UNCLOS had already been in process. Thus, the convention specifies that it shall not prejudice the codification and development of the law of the sea by the UN Conference on the Law of the Sea19. At the same time, the legal regime established by the UNCLOS also recognizes that:

“The provisions <…> are without prejudice to the specific obligations assumed by States under special conventions and agreements concluded previously which relate to the protection and preservation of the marine environment…”20.

Therefore, the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, 1972 and the 1996 Protocol to this convention on the matter of preventing marine pollution and removal of submarine cables from the seabed apply in parallel with the UNCLOS and should be carried out in a manner consistent with general principles and objectives of the UNCLOS21.

C) CONVENTION ON LIMITATION OF LIABILITY FOR MARITIME CLAIMS, 1976

The Convention on Limitation of Liability for Maritime Claims, 197622 replaced the International Convention Relating to the Limitation of the Liability of Owners of Seagoing Ships signed in

https://www.iaea.org/sites/default/files/publications/documents/infcircs/1974/i nfcirc205a1.pdf, last visited 01/09/2020. 19 Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, op.cit., Article 13. 20 UNCLOS, Article 237 (1). 21 UNCLOS, Article 237 (2). 22 Convention on Limitation of Liability for Maritime Claims, concluded 19 of November 1976, entered into force 1 of December 1986, 1456 UNTS 221;16 ILM 606 (1977). 167

Brussels in 195723. It has increased the limits of claims relating to loss of life or personal injury, and property claims such as damage to other vessels, property, or harbour works. The objective of this convention is to establish certain uniform rules on the limitation of liability for maritime claims. The convention was later amended by a Protocol of 199624 that further extended its scope.

1. Subject of the Convention on Limitation of Liability for Maritime Claims in relation to submarine cables legal regime

Judicial practice provides with examples to apply the Convention on Limitation of Liability for Maritime Claims, 1976 in relation to damage to submarine cables25. The main idea of the convention is to limit the amounts to be paid as a result of damage to property that can be used by parties in a maritime dispute.

Article 2 (1) (a) provides that the following cases are subject to the limitation of liability:

“claims in respect of loss of life or personal injury or loss of or damage to property (including damage to harbour works, basins and waterways and aids to navigation), occurring on board or in direct connexion with the operation of the ship <…>”.

As a general rule, it is possible to limit the liability in case of damage to submarine cables. However, the limitation is subject to specific circumstances. The convention envisages a restriction on limiting the liability prescribing in Article 4 that:

“A person liable shall not be entitled to limit his liability if it is proved that the loss resulted from his personal act or omission, committed with the

23 Convention relating to the limitation of the liability of owners of sea-going ships, concluded 10 of October 1957, entered into force 31 of May, 1968, 1412 UNTS 1- 23642 (1957). 24 Protocol amending the Convention on Limitation of Liability for Maritime Claims (1996 Protocol), concluded 2 of May 1996, entered into force 24 of March 2006, 35 ILM 1433 (1996). 25 Peracomo Inc. versus Société Telus Communications, case A-199-1, Federal Court of Appeal of Canada, 29 of June 2012, 2012 FCA 199, paragraph 3. 168

intent to cause such loss, or recklessly and with knowledge that such loss would probably result”.

Thus, intentional or negligent damage to submarine cables would not be considered as a ground for limiting liability which should be taken into consideration by all actors exercising activities in the sea.

2. Contribution of the Convention on Limitation of Liability for Maritime Claims to the legal regime of submarine cables: limitation of damage caused to submarine cables

The Convention on Limitation of Liability for Maritime Claims allows limiting the liability for subjects causing damage to submarine cables. The UNCLOS does not cover this issue specifically, although separate provisions of liability are provided, for instance, for protection and preservation of the marine environment and for marine scientific research that is also one of the freedoms exercised by states under the UNCLOS.

There are two elements relating to the issue of submarine cables in relation to the limitation of liability. First, submarine cables can be considered in the context of Article 2 (1) (a) as the “property” to which damage may be caused. Second, damage is caused “in direct connexion with the operation of the ship”. Thus, a vessel causing damage to a submarine cable by means of lifting it, catching with the anchor, or dragging along the seabed when exercising fishing, navigation, marine scientific research or any other activity may argue that this provision applies in this context.

A consideration should be given to subjects of the convention. In particular, to those who are addressed by it. The convention entitles shipowners and salvors to limit their liability26 where the first category deserves a special attention. Shipowners are defined as

26 Convention on Limitation of Liability for Maritime Claims 1976, op.cit., Article 1 (1). 169 owner, charterer, manager, and operator of a seagoing ship27. A claim from the owner of a submarine cable whose cable was damaged may be addressed to these subjects and they in accordance with the Convention on Limitation of Liability for Maritime Claims, 1976 have the right to limit their liability. The convention considers these subjects as legal persons meaning that claims should not be addressed to concrete individuals such as master of the vessel or a crew member. Instead claims are meant to reach a company having employment relations with the one who caused damage.

However, under Article 4 claims may also be addressed to concrete individuals on the basis of their negligence or intentional damage to submarine cables. For instance, in 2011, a Canadian court referred to this article and found master of the vessel guilty for damage to submarine cable caused by a ship under his command in Canadian territorial waters28. The decision was based on the Convention on Limitation of Liability for Maritime Claims, 1976, that highlighted the international significance of the case. The court held to convict the captain of intentional damage to the submarine cable and recover an amount in favor of the cable consortium owning damaged submarine cable. The captain was held guilty for being negligent and not paying due attention to adjacent submarine cable although it was properly marked on nautical charts and an alert of the vicinity of a cable was sent to various fishing associations exercising their activities nearby. The captain’s petition to use limitation of liability under the convention was refused29. However, some academic sources suggest that not an individual (a concrete person, an employee, or a contractor) who caused direct damage by his/her actions should be liable, but the legal entity shall bear the responsibility30. The final word how to consider acts of damage to submarine cables in terms of division of liability between subjects conducting their activity in the area of submarine cables or those

27 Convention on Limitation of Liability for Maritime Claims 1976, op.cit., Article 1 (2). 28 Peracomo Inc. versus Société Telus Communications, op.cit., paragraph 80. 29 Peracomo Inc. versus Société Telus Communications, op.cit., paragraph 3. 30 A. Proelss, United Nations Convention on the Law of the Sea…, op.cit., p. 787. 170 involved in the activities in the law of the sea, in general, is reserved for national legislation.

Damage to submarine cables is a frequent practice, and according to some calculations, about two hundred faults to cable systems occur annually31. In the circumstances when the UNCLOS does not address this matter the Convention on Limitation of Liability for Maritime Claims, 1976 provides limits of liability for claims arising in connection with damage to submarine cables that constitutes a part of submarine cables legal regime.

D) CONVENTION FOR THE SUPPRESSION OF UNLAWFUL ACTS AGAINST THE SAFETY OF MARITIME NAVIGATION, 1988 AND PROTOCOL TO THIS CONVENTION, 2005

The Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation32 and its Protocol33 were adopted as a response to cases of unlawful behavior against ships which became more frequent in the 1980s34. Such unlawful acts against vessels and

31 D. Burnett, “Cutting a submarine cable can cost You, Your vessel and Your insurance protection!”, Squire Sanders (US) LLP, January 2012, pp. 1-2, p. 1, available at https://www.squirepattonboggs.com/~/media/files/insights/publications/2012/ 01/cutting-a-submarine-cable-can-cost-you-your- vess__/files/squire_sanders_publication_cutting_a_submarine_c__/fileattachmen t/squire_sanders_publication_cutting_a_submarine_c__.pdf, last visited 01/09/2020. 32 Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation 1678, concluded 10 of March 1988, entered into force 1 of March 1992, 27 ILM 668 (1988); 1678 UNTS 221. 33 Protocol to the Convention For The Suppression Of Unlawful Acts Of Violence Against The Safety Of Maritime Navigation (SUA Convention), concluded 14 of October 2005, entered into force 1 of November 2005, IMO Doc. LEG/CONF.15/21. 34 See IMO website, section “Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation, Protocol for the Suppression of Unlawful Acts Against the Safety of Fixed Platforms Located on the Continental Shelf”, available at http://www.imo.org/en/about/conventions/listofconventions/pages/sua- treaties.aspx, last visited 01/09/2020. 171 especially acts of piracy at sea remain to be of a great international concern nowadays. Pirates operate in different parts of the world causing danger to vessels, crew, and the property onboard.

Cable ships are also subject to pirates’ attacks, especially in “dangerous zones” where cable ships proceed to lay or repair a damaged cable. In particular, several submarine cables are landed on the coast of East Africa and specifically in Somalia, the leading region in the world in a frequency of the acts of piracy. Cable ships appear to be even more vulnerable to pirates’ attacks than all other ships due to their limited maneuverability when engaged in cable operations35. Cases of attacks on cable ships occur regularly and are reported by the industry. Pirates use various means to attack a cable ship, for instance, make a fire36, attempt to board on cable ship37, or slowly approach to it with the aim of robbery38. Thus, cable ships along with other ships are protected by the provisions of international conventions.

1. Subject of the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation and its Protocol in relation to submarine cables legal regime

The Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation and its Protocol apply to submarine cables issues. The convention covers cable ships by formulating a broad notion of a ‘ship’ as follows:

35 T. Qiu, L. Gordon, “The Piracy Threat - Impact On Marine Operations”, SubOptic 2010, pp. 1-5, p. 1, available at http://www.suboptic.org/wp- content/uploads/2014/10/298_Oral_THU_3C_02.pdf, last visited 01/09/2020. 36 Subsea World News, “Pirates Attack Cable Layer in Red Sea”, Subsea World News, July 25, 2016, available at https://subseaworldnews.com/2016/07/25/pirates-attack-cable-layer-in-red-sea/, last visited 01/09/2020. 37 Commercial Crime Services, “Live piracy & Armed robbery report”, 6 of June 2015, available at https://www.icc-ccs.org/index.php/piracy-reporting- centre/live-piracy-map/details/146/1020, last visited 01/09/2020. 38 J. Burnett, Dangerous Waters, New York: Penguin, 2003, p. 181. 172

“For the purposes of this Convention, “ship” means a vessel of any type whatsoever not permanently attached to the sea-bed, including dynamically supported craft, submersibles, or any other floating craft”39.

Article 8 gives to the master of a cable ship the right to deliver a person he/she believes committed an offence under the convention, to relevant authorities:

“The master of a ship of a State Party (the "flag State") may deliver to the authorities of any other State Party (the "receiving State") any person who he has reasonable grounds to believe has committed one of the offences set forth in article 3” 40.

It is an essential function entrusted to the master of the vessel, and he should use his best qualification and knowledge to facilitate the applicability of the convention.

2. Contribution of the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation and its Protocol to the legal regime of submarine cables: cable ships security

The convention and its protocol contribute to the legal regime of submarine cables by ensuring safety of navigation of cable ships and their uninterrupted operations in the international maritime areas.

The broad notion of a ship offered by the convention allows covering anchored cable ships, ships on their way to cable damage site, or those engaged in repairing or laying operations. Thus, cable ships always remain under the protection of this convention. A peculiarity of cable ships comparing to all other vessels is their constant connectedness to the cable and therefore, limited manoeuvrability during laying operations41 that makes them an easy target for pirates.

39 Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation 1678, op.cit., Article 1. 40 Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation 1678, op.cit., Article 8 (1). 41 T. Qiu, L. Gordon, “The Piracy Threat…”, op. cit., p. 1. 173

The convention covers all maritime areas except for areas under the sovereignty of coastal states addressing “waters beyond the outer limit of the territorial sea”42. However, states members of the convention shall include appropriate penalties for the acts of piracy to their domestic law and by this, cover maritime areas under the sovereignty of states where cable ships shall also be protected43. The convention encourages states to cooperate, exchange the information, and coordinate their efforts to prevent offences44.

Provided that cable ships often navigate in waters subject to pirate’s attacks when the risk to normal cable laying/repairing process exists, this convention aims to give legal protection to them. However, cable ships shall also apply protective measures. In particular, by following numerous safety recommendations and best practices prescribed by international organizations with the IMO in the first place.

The contribution to submarine cables legal regime provided by this convention is addressed to cable ships and their security. In contrast to the COLREGs covering matters of collisions with other vessels, the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation is focused on protecting cable ships from pirates’ attacks and human-made hazards caused by pirates. Furthermore, COLREGs give protection to submarine cables only in the process of laying or repairing submarine cables when cable ships are restricted in the ability to maneuver while this convention does not make any restrictions during cable ships operations. It applies during the whole period of a cable ship’s presence in international maritime areas. This convention is an important tool in the extension of the legal regime of submarine cables addressing security of cable ships.

42 Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation 1678, op.cit., Article 4 (1). 43 Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation 1678, op.cit., Article 5. 44 See Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation, Article 13 (2). 174

E) ENERGY CHARTER TREATY, 1994

One more agreement contributing to the legal regime of submarine cables is the Energy Charter Treaty, 199445. Its primary object of regulation is free transfer of energy through the territories of contracting parties. Submarine power cables transmit energy (the electrical energy46) and therefore, provisions of Energy Charter Treaty apply to them.

1. Subject of the Energy Charter Treaty in relation to submarine cables legal regime

The Energy Charter Treaty refers to submarine cables in two occasions and uses diverse titles in relation to them.

First, the Energy Charter establishes that:

“The Contracting Parties shall work to promote access to international markets on commercial terms, and generally to develop an open and competitive market <…> for Energy-Related Equipment”47.

Submarine cables are defined by the Energy Charter Treaty as the “Energy-Related Equipment”48 and, therefore, as an infrastructure subject to the development on the competitive international market. Article 31 further extends the scope of cooperation between contracting parties prescribing that a Conference of the contracting parties shall “at its first meeting commence examination of the inclusion of energy-related equipment in the trade provisions of this Treaty”.

45 Energy Charter Treaty, concluded 17 of December 1994, entered into force 16 of April 1996, 2080 UNTS 95; 34 ILM 360 (1995). 46 See the definition of “Energy Materials and Products” in the Annex EM I to the Energy Charter Treaty. Paragraph 27.16 includes electrical energy transmitted by submarine power cables to the notion of energy materials and products. 47 Energy Charter Treaty, op. cit., Article 3. 48 See paragraph 8544.70 of the Annex EQ I: List of Energy-Related Equipment to Energy Charter Treaty considering optical fibre cables as an energy-related equipment. 175

Second, contracting parties of the Energy Charter Treaty address submarine cables directly, without the definition of “Energy-Related Equipment”. In the Declaration to the Energy Charter Treaty (non- binding instrument in contrast to the Treaty itself) they announce that:

“Article 7 is not intended to affect the interpretation of existing international law on jurisdiction over submarine cables and pipelines, and cannot be considered as doing so”49.

The material scope of Article 7, in general, is devoted to free transit of energy materials and obligations of contracting parties in relation to it. Thus, provisions of the UNCLOS similarly to other international agreements constituting the legal regime of submarine cables are not affected by this article.

In general, given that the primary scope of the Energy Charter Treaty is free transfer of energy, this agreement mostly considers submarine cables as energy-related equipment in the technical context. However, the Declaration to the Energy Charter Treaty refers to them as to the object of the legal regulation and addresses them in the context of international law.

2. Contribution of the Energy Charter Treaty to the legal regime of submarine cables: energy-related infrastructure

The provision of Article 3 complements the legal regime of submarine cables established in the UNCLOS by adding economic perspective. In the context of this provision, a contracting party may adopt laws and regulations ensuring the competitive market on its territory where all cable companies are entitled to lay submarine cables in states’ maritime zones. This also reflects an application of the freedom to lay submarine cables given to states under the UNCLOS. Thus, the Energy Charter Treaty considers submarine

49 See Declaration to the International Energy Charter Treaty, Consolidated Energy Charter Treaty With Related Documents, last updated 15 of January 2016, available at https://energycharter.org/fileadmin/DocumentsMedia/Legal/ECTC- en.pdf, last visited 01/09/2020. 176 cables from a specific perspective diverging from approaches of other international agreements addressed in this chapter.

Article 7 refers to the transit of energy materials and products through territories of contracting parties based on the principle of freedom of transit. According to it, contracting parties shall not discriminate on the basis of pricing and impose any unreasonable delays, restrictions, or charges for transmitting energy. They shall also encourage relevant entities to cooperate on certain matters relating to energy transfer and treat energy resources coming from another contracting party no less favorable than materials and products originating in their territory.

The provision of Article 7 is worth examining from the point that submarine cables are considered as an exception and the freedom of transit may apply to them in a specific way. The Energy Charter Treaty cannot affect existing international law and so far, its provisions appear to be consistent with the law of the sea. The main area of law to which this agreement pertains is energy law and thus, Energy Charter Treaty aims to contribute to submarine cables legal regime by considering submarine cables as an infrastructure responsible for transmitting energy. However, the potential conflict may arise, for instance, between the right of a coastal state to take reasonable measures for exploration and exploitation of its continental shelf under Article 79 of the UNCLOS and the obligation to facilitate the interconnection between contracting parties under the Energy Charter Treaty. In other words, the need of a coastal state to explore its resources in a particular area can conflict with a desire of another state to lay submarine cable in that area. Under the UNCLOS a coastal state may impede the laying of a submarine cable when exploring and exploiting its natural resources while under the Energy Charter Treaty it may be considered in contradiction to the agreement. The situation becomes even more complex considering that private law aspects complementing any submarine cable project are also contemplated.

The contribution of the Energy Charter Treaty to the legal regime of submarine cables established by the UNCLOS is of interest. The

177 evaluation of submarine cables as an infrastructure used for transmitting energy complements the legal regime of submarine cables by bringing uncommon perspective on submarine cables regulation.

F) CONVENTION ON THE PROTECTION OF THE UNDERWATER CULTURAL HERITAGE, 2001

International Convention on the Protection of the Underwater Cultural Heritage50 is a relatively new international agreement comparing to the conventions previously discussed in this chapter. It was adopted in 2001 under the initiative of the United Nations Educational, Scientific and Cultural Organization (UNESCO). The amount of parties to the convention is lesser than in those international agreements that already have a good reputation and were recognized by states. Some major maritime players remain to be reluctant in ratifying the convention. For instance, the United States and the United Kingdom51. However, the objective of the convention is of great importance. It aims to protect shipwrecks, artefacts, sunken cities, and other objects located underwater and having historic and cultural value. The general idea is to provide states with the framework for better protection of their submerged cultural heritage.

1. Subject of the Convention on the Protection of the Underwater Cultural Heritage in relation to submarine cables legal regime

Although this international agreement contains only one article related to submarine cables, it raises an interesting legal problem of using the ocean floor for competing purposes. The emergence of this convention was caused by the limited attention given to the notion of underwater cultural heritage in the process of negotiations

50 Convention on the Protection of the Underwater Cultural Heritage, concluded 2 of November 2001, entered into force 2 of January 2009, 2562 UNTS. 51 M. Aznar, O. Varmer, “The Titanic as Underwater Cultural Heritage: Challenges to Its Legal International Protection”, Ocean Development and International Law, vol. 44, 2013, pp. 96–112, p. 101. 178 of the UNCLOS. It had provoked an alternative lawmaking process and the result of this process later appeared in the form of new separate convention. Notwithstanding the UNCLOS was designed to be the main instrument regulating law of the sea matters, it does not devote attention to the protection of cultural heritage. Thus, the concept of underwater cultural heritage52 was formulated in the framework of the Convention on the Protection of the Underwater Cultural Heritage as follows:

“all traces of human existence having a cultural, historical or archaeological character which have been partially or totally under water, periodically or continuously, for at least 100 years such as:

(i) sites, structures, buildings, artefacts and human remains, together with their archaeological and natural context; (ii) vessels, aircraft, other vehicles or any part thereof, their cargo or other contents, together with their archaeological and natural context; and (iii) objects of prehistoric character”53.

The convention continues:

“Pipelines and cables placed on the seabed shall not be considered as underwater cultural heritage”54.

Separation of cables from the notion of underwater cultural heritage provokes more profound question of alternative uses of the seabed

52 See more: M. Rau, “The UNESCO Convention on the Underwater Cultural Heritage and the International Law of the Sea”, Max Plank Yearbook of United Nations Law, vol. 6, 2002, pp. 387-482, available at http://www.mpil.de/files/pdf1/mpunyb_rau_6.pdf, last visited 01/09/2020; S. Dromgoole, Underwater Cultural Heritage and International Law, Cambridge: Cambridge University Press, 2013; T. Scovazzi, Underwater Cultural Heritage, edited by R. Wolfrum, New York: Oxford University Press, 2009; R. Frost, “Underwater Cultural Heritage Protection”, Australian Year Book of International Law, vol. 23, pp. 25-50; J. Blake, “The Protection of the Underwater Cultural Heritage”, International and Comparative Law Quarterly, vol. 45, Issue 4, October 1996, pp. 819-843; L. Prott, P. O'Keefe, “International Legal Protection of the Underwater Cultural Heritage”, Revue Belge de Droit International/Belgian Review of International Law, vol. 14, Issue 1, 1978-1979, pp. 85-103. 53 Convention on the Protection of the Underwater Cultural Heritage, op. cit., Article 1 (a). 54 Convention on the Protection of the Underwater Cultural Heritage, op. cit., Article 1 (b). 179 that might compete with submarine cables activities as further examined in chapter VII.

2. Contribution of the Convention on the Protection of the Underwater Cultural Heritage to the legal regime of submarine cables: competitive uses of the seabed

The primary point of the convention in relation to submarine cables is that submarine cables laid along the bottom of the oceans are not considered as an underwater cultural heritage. Consequently, they are not included in the scope of protection of this convention55. On the contrary, submarine cables may pose threats to objects that fall under the notion of underwater cultural heritage and this concern is directly expressed by some legal scholars representing the Spanish legal doctrine56. In particular, Professor Mariano Aznar argues that recently states have gradually extended their rights over their contiguous zones to achieve general protection of underwater cultural heritage in these zones due to a vast number of activities that can prejudice their preservation57.

Laying of submarine cables irrespective of the maritime zone may contradict the interests of protecting underwater cultural heritage sites provided that the most optimal, scientifically explained, and relevant cable routes may pass through territories where such objects are located. Especially, taking into consideration that the number of underwater cultural heritage sites is often underestimated.

According to the UNESCO, nearly three million of unexplored wrecks are buried at the bottom of the World Ocean58. There are

55 Convention on the Protection of the Underwater Cultural Heritage, op. cit., Article 1 (1). 56 M. Aznar, “The Contiguous Zone as an Archaeological Maritime Zone”, International law Journal of Marine and Coastal Law, vol. 29, 2014, pp. 1-51, p. 40. 57 Ibid, p. 3. 58 UNESCO, Section of Museums and Cultural Objects, “Information Brochure of UNESCO about the Convention on the Protection of the Underwater Cultural Heritage”, Introduction, SEP Nîmes, 2001, pp. 1-32, p. 3, available at http://www.unesco.org/culture/underwater/infokit_en/, last visited 01/09/2020. 180 even more objects of underwater cultural heritage that are already known to the mankind and should be preserved for future generations.

The convention’s contribution to the legal regime of submarine cables established by the UNCLOS is controversial. On the one hand, it addresses submarine cables and excludes them from its scope clearly defining that the regime of underwater cultural heritage does not protect them. On the other, it does not give any instructions on how to interact with those activities not covered by the convention. In particular, how submarine cables should be considered if they coincide in time and place with underwater cultural heritage sites.

Geographically the convention applies to the same maritime areas as the UNCLOS. Articles 7 to 12 address the underwater cultural heritage in the territorial sea and archipelagic waters, exclusive economic zone and the continental shelf, contiguous zone, and international seabed area. Generally, the Convention on the Protection of the Underwater Cultural Heritage develops ideas of the UNCLOS in a more detailed technique and with a particular focus on underwater cultural heritage. Article 3 envisages the relation of the Convention on the Protection of the Underwater Cultural Heritage and the UNCLOS. It provides:

“Nothing in this Convention shall prejudice the rights, jurisdiction and duties of States under international law, including the United Nations Convention on the Law of the Sea. This Convention shall be interpreted and applied in the context of and in a manner consistent with international law, including the United Nations Convention on the Law of the Sea”.

Thus, the Convention on the Protection of the Underwater Cultural Heritage should be interpreted in connection with the UNCLOS and should apply in the general context of international law.

G) INSTRUMENTS OF INTERNATIONAL ORGANIZATIONS

181

International organizations’ resolutions play a certain role in submarine cables regulation. They often set up technical rules and regulations, as well as standards to be followed by states. Sometimes they serve as a starting point for further negotiations on the international agreement. Resolutions of international organizations do not constitute an express of will by states but appear to be the result of work of their organs. Faster reaction to changing circumstances and timely reflection in a legal text constitute advantages of non-binding instruments often addressed by the concept of soft law. Soft law gives their drafters a freedom to formulate what is required and discretion how to better address the issue. Such instruments often constitute a compromise between states that are reluctant to create obligations for themselves and states that are ready to make the instrument binding59.

The legal force of resolutions of international organizations may sometimes be lower than the legal force of traditional sources of international law. However, it depends on a particular international organization and its basic document where states directly express powers of such international organization60. Most resolutions of international organizations are considered as soft law due to the absence of direct obligations for states. This sub-section is dedicated to the analysis of the notion of “soft law” in the law of the sea and its relevance to resolutions of international organizations in the area of submarine cables. It further provides with concrete examples of such resolutions applicable to submarine cables.

1. The concept of soft law

Soft law has a variety of definitions in international law61. Generally, it is considered as a notion opposed to a hard law, the rules of

59 J. Klabbers, “The Redundancy of Soft Law”, Nordic Journal of International Law, vol. 65, 1996, pp. 167-182, p. 169. 60 M. N. Shaw, International Law, Cambridge: Cambridge University Press, 2008, p. 1306. 61 See P. Weil, “Towards Relative Normativity in International Law”, American Journal of International Law, vol. 77, Issue 3, 1983, pp. 413-442, p. 414; J. Gold, “Strengthening the Soft International Law of Exchange Arrangements”, American 182 international law creating clear rights and obligations for states. Consequently, soft law instruments do not contain concrete obligations but express mutual interests, intentions, or direction of actions. The provisions of soft law instruments may be vague and ambiguous62. Forms of soft law instruments also vary and include treaties, guidelines, codes of conduct, resolutions of international organizations, declarations, joint statements, et cetera. The present sub-section is considering resolutions of international organizations attributed to soft law.

There are several criteria elaborated by Professor John King Jr. Gamble helping to determine the “softness” of the international law instruments such as concreteness of provisions; verb describing obligations; dispute settlement provisions, et cetera63. Considering resolutions of international organizations relating to submarine cables, they are, in general, comprise examples of soft law where all criteria tend to aspire to maximum. They are not concrete and precise in their content and stipulate for the need of future actions or development. Verbs describing actions to be taken do not contain clear legal obligations (“enable”, “encourage”, “identify”, et cetera). They tend to be more declarative and outline the framework to be further elaborated in detail. As a rule, such instruments do not establish dispute settlement procedures provided that there are no matters of disputes since the interests of involved actors do not intersect. Generally, resolutions of international organizations are formulated in abstract terms and lack specificity except for some IMO resolutions.

The non-traditional and non-standard nature of soft law does not necessarily convey less legal force. On the opposite, soft law

Journal of International Law, vol. 77, Issue 3, 1983, pp. 443-489, p. 443; T. Gruchalla-Wesierski, “Framework for Understanding Soft Law”, McGill Law Journal, vol. 30, 1984, pp. 37-88, p. 44; C. Crawford Lichtenstein, “Hard Law v. Soft Law: Unneccesary Dichotomy”, The International Lawyer, vol. 35, 2001, pp. 1433-1441, p. 1434. 62 J. K. Gamble, “The 1982 United Nations Convention on the Law of the Sea as Soft Law”, Houston Journal of International Law, vol.8, 1985, pp. 37-47, p. 37. 63 Ibid, p. 42. 183 instruments may have even more successful regulative effect than hard law agreements. In the legal regulation of submarine cables resolutions of international organizations although having fragmented character nevertheless contribute to their legal regime.

2. Instruments concerning submarine cables

In the case of submarine cables, several international organizations partially have competence in regulating cables and occasionally publish certain recommendations. The regulation provided by them is incidental and not systematic. As it was analysed in chapter II, there is currently no international organization comprehensively responsible for submarine cables issues except for the ICPC having a non-governmental nature.

There is no clear picture of all legal sources regulating submarine cables in addition to the UNCLOS and main international conventions. Therefore, the regulation appears to be fragmented given that instruments issued by international organizations contribute to the development of submarine cables legal regime in a dispersed manner. a. IMO resolutions

IMO’s resolutions are worth mentioning in the first place provided that they constitute the majority of resolutions addressed to regulate submarine cables64.

IMO, for instance, initiated more detailed interpretation of COLREGs relating to the requirement to keep out of the way from cable ships restricted in maneuvering while engaged in cable repair operations, especially during the night. In particular, it contributed on a matter of how to make cable ships visible for other vessels65.

64 See website of the IMO, available at http://www.imo.org/EN/Pages/Default.aspx, last visited 01/09/2020. 65 See IMO, Report to the Maritime Safety Committee NCSR 3/29, dated 22 of March 2016, Sub-Committee on navigation, communications and search and rescue, 3rd session, Agenda item 29, available at 184

IMO Circular on the Prohibition of Anchoring in the Straits of Malacca and Singapore66 prohibited anchoring in these straits due to numerous incidents of cable damages reported there. The Circular prescribes that coastal state authorities will regularly monitor this area and suppress violations. Anchoring is permitted only in case of necessity, with the prior careful study of nautical charts and identifying the location of submarine cables. This Circular was issued on an ad hoc basis for a particular case of Malacca and Singapore straits that underlines an adequate and timely reaction to emerging issues. At the same time, it demonstrates the non-systematic approach in relation to submarine cables regulation. Apart from these examples, there are more regulations dedicated to specific technical issues where submarine cables are addressed superficially67. b. ITU recommendations

ITU periodically develops and publishes recommendations devoted to technical matters relating to submarine cables68.

https://www.maritimenz.govt.nz/IMO/documents/NCSR-3-report.pdf, last visited 01/09/2020. 66 IMO, Circular SN.1/Circ.282 on the Prohibition of Anchoring in the Straits of Malacca and Singapore, 27 of November 2009, Ref. T2-OSS/2.7.1, available at https://cil.nus.edu.sg/wp-content/uploads/2009/10/SN-1-Circ-282- INFORMATION-CONCERNING-ANCHORING-IN-THE-TSS-IN-THE- SOMS.pdf, last visited 01/09/2020. 67 See, for instance, IMO Standard Marine Communication Phrases NAV 46/INF.4, 4 of April 2000, International Maritime Organization, Sub-Committee on Safety of Navigation 46th session, Agenda item 9, (SMCP), available at http://www.segeln.co.at/media/pdf/smcp.pdf, last visited 01/09/2020; IMO, Report to the Maritime Safety Committee NCSR 3/29…, op. cit.; Annex 24 Resolution MSC.232(82), concluded 5 December 2006, Adoption of the Revised Performance Standards For Electronic Chart Display And Information Systems (ECDIS), International Maritime Organization, available at http://www.imo.org/en/KnowledgeCentre/IndexofIMOResolutions/Maritime- Safety-Committee-(MSC)/Documents/MSC.232(82).pdf, last visited 01/09/2020. 68 See website of the ITU, available at https://www.itu.int/en/Pages/default.aspx, last visited 01/09/2020. 185

One of the examples would be the recommendation dedicated to general features of fibre optical submarine cable systems issued by this international organization69. Its purpose is to:

“identify the main features of optical fibre submarine cable systems, and to provide generic information on relevant Recommendations in the field of optical fibre submarine cable systems”70.

The ITU is also currently working on recommendation devoted to requirements for “open cable” repeatered submarine optical systems and announced that:

“This Recommendation describes the longitudinal compatibility for DWDM (Dense Wavelength Division Multiplexing) applications on dispersion-unmanaged repeatered cable systems. In addition, this Recommendation enables multiple vendors to design DWDM transmission equipment for submarine repeatered cable systems that are compliant with this Recommendation”71.

As it was examined in chapter I, the ITU has also elaborated main definitions used in submarine cable networks72. Moreover, it sometimes addresses various aspects relating to submarine cables in its working documents. For instance, matters of using cables for climate monitoring and disaster prediction73 or regulation of the market for submarine cable services74.

69 Recommendation ITU-T G.971, 2016, Access to Submarine Cables: Guidelines, Harmonization of ICT Policies in Sub-Saharan Africa HIPSSA, available at https://www.itu.int/rec/T-REC-G.971/en, last visited 01/09/2020. 70 Ibid, Section “General features of optical fibre submarine cable systems”. 71 See website of the ITU, ITU-T work programme ITU-T G.977.1 (Under study 2017-2020), Transverse compatible DWDM applications for repeatered optical fibre submarine cable systems, SG15: Q8/15, available at https://www.itu.int/ITU-T/workprog/wp_item.aspx?isn=13457, last visited 01/09/2020. 72 Recommendation ITU-T G.972, op.cit. 73 ITU-T, T13-SG15 Contribution 1218: Proposal to initiate the discussions about the work item of using submarine cable network for climate monitoring and disaster prediction, ITU, Meeting Documents, June 2015, available at https://www.itu.int/md/T13-SG15-C-1218, last visited 01/09/2020. 74 ITU-T SG 3, Contribution 7: Regulation of the market for capacity and submarine cable services, ITU, Telecommunication Standardization Sector of ITU, 186 c. Documents issued by other international organizations

Apart from the work of IMO and ITU establishing new substantial rules relating to submarine cables, there are also several international organizations that are not actively involved in the normative process, but that recognize the importance of submarine cables and call upon certain measures and steps to be taken in order to ensure their comprehensive legal regime.

For instance, the General Bathymetric Chart of the Oceans75, an international organization operating under the joint auspices of the IHO and the Intergovernmental Oceanographic Commission of UNESCO recognizes the importance of submarine cables and:

“calls upon States to take measures to protect fibre-optic submarine cables and to fully address issues relating to these cables, in accordance with international law, as reflected in the Convention”;

“encourages greater dialogue and cooperation among States and the relevant regional and global organizations” in matters of submarine cables;

“encourages the adoption by States of laws and regulations addressing the breaking or injury of submarine cables” and;

“affirms the importance of maintenance, including the repair, of submarine cables, undertaken in conformity with international law”76.

The UN gives a precise attention to submarine cables, recognizes their importance, and asserts the necessity to work together with the UN partners, namely UNESCO, ITU and the United Nations

October 2008, available at https://www.itu.int/md/T09-SG03-C-0007, last visited 01/09/2020. 75 See website of General Bathymetric Chart of the Oceans, available at https://www.gebco.net/about_us/overview/, last visited 01/09/2020. 76 General Bathymetric Chart Of The Oceans (GEBCO), Thirty Fourth Meeting of the GEBCO Guiding Committee (GGC34), 16 – 17 of November 2017, Busan, Republic of Korea, paragraphs 168-171, available at https://www.gebco.net/about_us/meetings_and_minutes/documents/ggc34_rep ort_2017.pdf, last visited 01/09/2020. 187

Industrial Development Organization (UNIDO) in some matters. For instance, in ensuring electricity supply in African countries77.

The present analysis does not aim to cover all legal instruments addressing submarine cables in international law. More international agreements may exist, although major and representative instruments are examined in this chapter. It does not appear to be necessary to provide an exhaustive list of international agreements governing submarine cables provided that the most important instruments analysed in this chapter sufficiently demonstrate the state of submarine cables legal regime. It is characterized by lack of integrity and comprehensiveness to govern the modern submarine cables industry development. Furthermore, cables are addressed by different instruments that makes them scarcely visible as a full system. It may result in a fragmented implementation of international law. Although the regulation has not significantly changed since the time it was first established in the framework of the UNCLOS, there are certain concerns in the international community regarding the UNCLOS’ deficiencies that require re-thinking due to the non- correspondence of the current legal regime to present conditions of the maritime practice.

Public international law is not the only source of submarine cables regulation. Implementation of international law provisions in national legislation as well as private law instruments also deserve due consideration. Thus, the next chapter is devoted to domestic and private law instruments.

77 W. Hongbo, Opening Statement at the Regional Meeting for Africa for the 2012 ECOSOC Annual Ministerial Review, Dar es Salaam, 14 of March 2013, UN, available at http://www.un.org/en/ecosoc/newfunct/pdf13/wipo_ecosoc_amr_dar_13_f_w u.pdf, last visited 01/09/2020. 188

CHAPTER VI DOMESTIC AND PRIVATE LAW INSTRUMENTS REGULATING SUBMARINE CABLES

Legal regulation of submarine cables originates in international law. However, further implementation of international norms takes place in domestic legislation. National legal systems establish specific measures, procedures, and rules facilitating general legal provisions to be implemented in practice. Examination of national legislation allows evaluating the level of development of the legal regime of submarine cables in a concrete state and assess general situation worldwide. National legislation is followed by private international law regulating submarine cables-related activities. This chapter aims to consider practice of states on the regulation of submarine cables at domestic level, and private law instruments elaborated by cable industry actors. After examining these two last sources regulating the topic, a complete picture of modern submarine cables legal regime would become visible.

A) DOMESTIC LAW: IMPLEMENTATION OF STATES´ OBLIGATIONS UNDER THE UNCLOS

The purpose of this section is to provide general overview of common tendencies between states in implementing international provisions and to characterize domestic law level of submarine cables regulation.

States have different implications in the implementation of international law provisions. Examination of national practices provides better understanding of application of the legal regulation of submarine cables on a domestic level worldwide. Furthermore, it facilitates the analysis of deficiencies existing in the modern legal regime of submarine cables examined in chapter VII.

1. Practice of states relating to implementation of international law

States appear to have certain common characteristics in regulating submarine cables. Many of them establish protection measures in 189 domestic legislation. Some states contain detailed regulations dedicated to submarine cables. Occasionally states form a special authority responsible for submarine cables issues. There are also other initiatives taken to develop submarine cables legal regime. Such commonalities are examined in this sub-section. a. Protection measures

Protection measures are legislative measures aimed to defend submarine cables as an infrastructure and prevent it from being physically damaged. Protection measures implemented by states include protection corridors and protection zones.

1) Protection corridors

One of the most efficient measures established in national legal systems is cable protection corridors. The idea of such corridors is to prohibit certain activities in the vicinity of submarine cables with the aim to minimize the possibility of causing damage to them. Cable protection corridors are provided, for instance, by Australian1 and New Zealand2 laws. In Japan, there is a specific width for cable protection corridors that equals to one thousand meters3. According to Colombian legislation, protective corridors with the width of five hundred meters shall be installed on both sides of submarine cable4. In the Russian Federation, this distance equals to four hundred sixty

1 Telecommunications and Other Legislation Amendment…, No. 104, op. cit., Part 2 – Protection Zones. 2 Submarine Cables and Pipelines Protection, Act No. 22, op.cit., Section “Restricted Area”, paragraph 3. 3 Telecommunications Business Law, No. 86, adopted 25 of December 1984, amended by Law No. 125 of 24 of July 2003, Ministry of Internal Affairs and Communications of Japan, Article 141 (1), available at the ICPC Members Database. 4 Resolution under which security areas are established along the lines of submarine cables in Colombian waters, No. 204, adopted 19 of April 2012, National Defense Ministry, National Navy, General Maritime Direction of the Republic of Colombia, Official Journal No. 48.410, Article 1, available at the ICPC Members Database. 190 three meters5. Less wide corridor of two hundred meters on either side of the cable is provided in Denmark6. In the legislation of Ghana, the corridors around submarine cables are even smaller, they should not exceed fifty meters in both directions from the cable line7. It appears that narrow corridors are not completely efficient in comparison to other states’ practice where much wider zones are provided.

2) Protection zones

Apart from cable corridors, some states establish cable protection zones in waters under their jurisdiction. Protection zones appear to be more extensive than cable corridors and more restrictive in terms of allowed activities. In some cases, submarine cables protection zones are specifically declared by separate legal acts8. Generally, cable protection zones permit activities having no direct contact with the seabed. Thus, in cable protection zones anchoring, trawling, and any

5 Regulation of the Russian Federation “On approval of rules for the protection of communication lines and installations of the Russian Federation” (Ob utverzdenyi pravil okhrany linyi y sooruzheniy svyazi Rossiiskoy Federatsii) № 578П, adopted 9 of June 1995, Government of the Russian Federation, Article 2396, Collection of Legislation of the Russian Federation 1995, №25. 6 Order on the Protection of Submarine Cables and Pipelines , No. 939, adopted 27 of November 1992, Danish Maritime Authority, Section 4, available on the Danish Maritime Authority website at https://www.dma.dk/Vaekst/Rammevilkaar/Legislation/Orders/Order%20on% 20the%20protection%20of%20submarine%20cables%20and%20pipelines.pdf, last visited 01/09/2020. 7 Regulation on protection of offshore operations and assets, adopted 27 of January 2012, made under the Ghana Shipping Act, Ghana Maritime Authority, Art. 6 (2), available at https://www.ghanamaritime.org/uploads/Ghana%20Shipping%20(Protection%2 0of%20Offshore%20Operations%20and%20Assets)%20Regulations%202012%20 LI%202010.pdf, last visited 01/09/2020. 8 See, for instance, Submarine Cable (Northern Sydney Protection Zone) Declaration 2007, Australian Communications And Media Authority, adopted 6 of July 2007, available at https://www.legislation.gov.au/Details/F2007L02216, last visited 01/09/2020; Submarine Cable (Southern Sydney Protection Zone) Declaration 2007, Australian Communications And Media Authority, 12 of July 2007, available at https://www.legislation.gov.au/Details/F2007L02217, last visited 01/09/2020. 191 activity that comes into contact with the seabed is completely prohibited. Establishment of such special protection zones is highly valued in submarine cables literature as an effective measure given that not many states cover this question in their national legislation. However, it appears to be essential for safe operations of submarine cables9. The possibility to establish protected areas for submarine cables and pipelines is also provided in Denmark10. New Zealand possesses a special law on the protection of submarine cables. It provides the responsibility for up to two hundred fifty thousand New Zealand dollars for deliberate damage to submarine cables in designated protected areas11. Indonesia also ensures protection of existing cables by establishing safety zones around them12. b. Detailed regulations

Australian legislation provides with detailed definitions of cable terms helping to avoid problems with specific terminology. For instance, it defines who shall be considered the owner of submarine cable. It also contains a detailed description of the types of anchors that can damage submarine cables13. These measures help to prevent possible disputes and misunderstandings in practice.

Danish legislation, in particular, the Order on the Protection of Submarine Cables and Pipelines provides a detailed plan of actions for vessel’s master in case of anchoring and hooking a cable in the established protective zone14. The plan includes immediate report of cable damage to the Danish fleet that shall establish communication

9 R. Beckman, “Submarine Cables…”, op. cit., p. 14. 10 Order on the Protection of Submarine Cables and Pipelines, No. 939, op. cit., Section 4. 11 Submarine Cables and Pipelines Protection, Act No. 22, op.cit., paragraph 11. 12 R. Churchill, A. Lowe, The law of the sea, op.cit., p. 127. 13 Submarine Cable (Perth Protection Zone) Declaration 2007, Australian Communication and Media Authority, adopted 24 of September 2007, Section 3 “Definitions”, available at https://www.legislation.gov.au/Details/F2007L03914, last visited 01/09/2020. 14 Order on the Protection of Submarine Cables and Pipelines, No. 939, op. cit., Section 3 “Ships that have run aground or anchored in a cable or pipeline field”. 192 with the owner of a submarine cable. The vessel is recommended not to take independent actions and to wait for special instructions from the owner and competent authorities. Similar norm exists in the legislation of the Russian Federation15. In addition, the Order warns that lifting cables is dangerous for safety of ships, describes how buoys marking cables should be marked in order to be visible, and explains how to report a case of lifting submarine cable.

In China, the process of resolving disputes concerning the owner of a submarine cable and its operator is settled in detail and under various circumstances16. However, it is explicitly stated that submarine cables used for military purposes are excluded from general legal regulation and these rules do not apply to them. It brings the analogy with the provision of the 1884 Convention that expressly stated that conventional provisions shall not have legal force during the wartime17. Regardless, the majority of submarine cables used for telecommunications or power supply are covered by these dispute settlement provisions.

A detailed regulation is not always considered as an advantage of the legal regime of submarine cables. Excessive amount of provisions and requirements by states, on the opposite, may cause obstacles for the cable industry while implementing cable projects. This matter is examined in detail in chapter VI. c. Specifically designated authority

A separate institution responsible for submarine cables is established in Singapore18. Its competence includes licensing and issue of permits in Singapore’s maritime zones including the provision of

15 Regulation of the Russian Federation “On approval of rules for the protection …”, op. cit. 16 Regulations of the Protection of Submarine Cables and Pipelines, Order No. 24, adopted 9 of January 2004, Ministry of Land and Resources of the People's Republic of China, Articles 16-19, available at the ICPC Members Database. 17 Article 15 of the 1884 Convention. 18 See website of INFOCOMM, Media Development Authority of Singapore, available at https://www.imda.gov.sg/, last visited 01/09/2020. 193 services online. It is also responsible for issuing recommendations and guidelines to ensure the uniform and consistent process of submarine cable laying in Singapore19.

Domestic law of Hong Kong contains a specific role of an officer authorized to inspect submarine cables. The obstruction to the performance of duties by such officer is punished by one year of imprisonment20. Similarly, in New Zealand, a “protection officer” (governmental official responsible for monitoring activities in protected zones) may be appointed21. d. Other initiatives

States implement international law provisions to their domestic legislation in various forms emphasizing different aspects and prioritizing certain issues. Thus, there is always a place for self-driven initiatives beyond minimum requirements of the UNCLOS.

In India submarine cables are given a great importance as noted in the National Maritime Military Strategy22. The document indicates an

19 See, for instance, Guidelines On Deployment Of Submarine Cables Into Singapore, adopted 1 October 2016, Info-communications Media Development Authority (IMDA) of Singapore, available at https://www.imda.gov.sg/- /media/imda/files/regulation-licensing-and-consultations/codes-of-practice-and- guidelines/subcablelanding.pdf?la=en, last visited 01/09/2020; Guidelines On Submarine Cable Repair Into Singapore, adopted 1 October 2016, Info- communications Media Development Authority (IMDA) of Singapore, available at https://www.imda.gov.sg/-/media/imda/files/regulation-licensing-and- consultations/codes-of-practice-and-guidelines/subcablerepair.pdf?la=en, last visited 01/09/2020. 20 Submarine Telegraph Ordinance, Cap. 497, adopted 27 of December 1996, paragraph 7, Hong Kong, available at https://www.elegislation.gov.hk/hk/, last visited 01/09/2020. 21 Submarine Cables and Pipelines Protection, Act No. 22, op.cit., paragraph 16. 22 Ensuring Secure Seas: Indian Maritime Security Strategy, Indian Navy Naval Strategic Publication (NSP) 1.2, adopted in October 2015, Directorate of Strategy, Concepts and Transformation, Integrated Headquarters, Ministry of Defence (Navy) of India, Section “Maritime Economy”, available at https://www.indiannavy.nic.in/sites/default/files/Indian_Maritime_Security_Stra tegy_Document_25Jan16.pdf, last visited 01/09/2020. 194 essential role of submarine cables laid along the bottom of the Indian Ocean for the economic development of India. Therefore, along with legal point of view submarine cables are also considered from military and political perspectives.

In Hong Kong laying of submarine cables constitutes a public matter and proposals for laying new cables are published in the local newspaper. After the publication citizens interested in cable project can submit their suggestions and comments to the relevant department dealing with the issue23. The participation of the local population is not prescribed by the UNCLOS. However, states may always enlarge its scope if it does not contradict international law.

2. Comparison of domestic legal provisions on the obligation to establish liability for breaking or injury to submarine cables under the UNCLOS

The analysis given in the previous sub-section demonstrates the variety of regulation activities and initiatives taken by states on the national level concerning different aspects of submarine cables legal regime. Apart from providing general overview, a particular aspect compared in the experience of several states appears to contribute the analysis from a more concrete perspective. Thus, this sub-section approaches the establishment of liability for breaking or injury to submarine cables and provides comparison between domestic law of three states. a. Explanation of the object of comparison

The liability for breaking or injury to submarine cables is chosen as an aspect of comparison subject to the following criteria. First, due to the universal character of this obligation under the UNCLOS that

23 Information Note on Applying for Required Government Permits/Approvals/Visas to Carry out Works Related to Submarine Cable Systems within Hong Kong Waters, I0011 (16), adopted 2 of April 2016, Office of the Communications Authority of Hong Kong, available at https://www.coms- auth.hk/filemanager/statement/en/upload/392/i0011e.pdf, last visited 01/09/2020. 195 states have to respect. Second, due to the fact that in practice almost all states have reflected this obligation in their domestic legal order. Third, it appears to be one of the oldest provisions relating to submarine cables that proved to have importance for states for a long period.

A comparison of implementing the UNCLOS provision on qualifying act of damage to submarine cables as an offense and experience of states on implementing relating provisions is only a minor part of the extensive research. However, preliminary results on how states succeeded in incorporation and further development of international law obligations in their domestic legal orders appear to be sufficient to observe the state of affairs. b. Classification of states by established legal regime

All states might be contingently divided into three groups by the extent how they implemented provisions of the UNCLOS. However, the division could be indistinct in some cases and vary from state to state taking into consideration that some states can be attributed to two groups simultaneously.

The first group of states dedicates sufficient attention to submarine cables. States comprising this group have advanced and well- developed legislation on the topic. Examples would include Iceland24, Australia25, China26 and New Zealand27. This group

24 For submarine cables legal regime in Iceland see Act On Marine And Coastal Antipollution Measures, No. 33, 2004, Icelandic Transport Authority, available at https://www.icetra.is/media/english/Act_33_2004-on-Marine-And-Coastal-Anti- pollution-Measures.pdf, last visited 01/09/2020; Regulation on the authorization of laying of submarine cables and underwater pipelines, No.600, adopted 23 of May, 2018, Ministry of the Environment and Natural Resources of Iceland, available at https://www.reglugerd.is/reglugerdir/allar/nr/600-2018, last visited 01/09/2020; Electronic Communications Act, No. 81, op. cit. 25 For submarine cables legal regime in Australia see Submarine Cables and Pipelines Protection Act, No. 61, 1963, Australian Government, available at https://www.legislation.gov.au/Details/C2016C00970/Html/Text, last visited 01/09/2020; Telecommunications and Other Legislation Amendment.., No. 104, op. cit. 196 consists of states to be considered as models and examples of successful regulation of submarine cables. They use a variety of legal tools for protecting submarine cables from successful implementation of international law provisions to own initiatives explicitly invented for submarine cables. States’ initiatives are contained in legislative acts issued in the form of laws as well as in the form of executive orders providing with more practical and technical provisions. A distinctive feature of the first group of states is precise and detailed regulation of adjacent activities on seabed such as fishing, anchoring, and mining.

The second group of states occupies a middle position. Examples would include France28, Chile29, Colombia30 and Denmark31. They have certain provisions devoted to submarine cables that, however, are not sufficient for forming a comprehensive legal regime. States

26 For submarine cables legal regime in China see Regulations of the Protection of Submarine Cables and Pipelines…, op. cit.; Regulations of Permission on Delineation of Course for Laying…, op.cit. 27 For submarine cables legal regime in New Zealand see Submarine Cables and Pipelines Protection, Act No. 22, op.cit. 28 For submarine cables legal regime in France see Code of Postal and Electronic Communications, op.cit.; Decision specifying the terms and conditions for accessing ultra-fast broadband optical fibre electronic communications lines on the whole territory except very high-density areas, No. 2010-1312, adopted 14 of December 2010, Electronic Communications and Postal Regulatory Authority, available at the ICPC Members Database. 29 For submarine cables legal regime in Chile see Ley General De Telecomunicaciones, No. 18168, adopted 2 of October 1982, Ministerio De Transportes y Telecomunicaciones de Chile, Art. 36B, available at https://www.leychile.cl/Navegar?idNorma=29591, last visited 01/09/2020; Reglamento General de Orden, Seguridad y Disciplina en las Naves y Litoral de la Republica, Nº 1.340 bis., adopted 14 of June 1941, National Ministry of Naval Defense of Chile, available at https://www.directemar.cl/directemar/site/artic/20170126/asocfile/2017012612 2607/tm_013__2012.pdf, last visited 01/09/2020. 30 For submarine cables legal regime in Colombia see Resolution under which security areas are established…, op. cit.; Criminal Code of Colombia, Ley 599, adopted 24 of July 2000, Colombian Congress, Diario Oficial No. 44097 del 24/07/2000, available at the ICPC Members Database. 31 For submarine cables legal regime in Denmark see Order on the Protection of Submarine Cables and Pipelines, No. 939, op. cit., Section 4. 197 representing the second group have less detailed regime of submarine cables and leave some issues unregulated. Usually they are parties to international agreements regulating submarine cables and similarly to members of the first group maintain some successful provisions. A reason for their attribution to the second group is lower degree of regulating issues left unsolved under international law.

Finally, the third group represents states lacking several essential issues in regulating submarine cables. For instance, domestic legislation of Ghana32, Vietnam33, Uruguay34 and the Russian Federation35. Significant gaps are encountered by submarine cables industry in the legislation of such states. In particular, by cable laying and operating companies while obtaining permissions and documenting operations with cables in states’ maritime zones. The third group is represented by states with a relatively poor-developed legal regime where submarine cables are not appraised as a priority in the legal regulation. c. Implementation of the obligation to establish liability for breaking or injury to submarine cables

As it was examined in chapter V, Article 113 of the UNCLOS provides with the obligation to establish responsibility for damage to

32 For submarine cables legal regime in Ghana see Regulation on protection of offshore operations..., op. cit. 33 For submarine cables legal regime in Vietnam see Directive on Strengthening the Protection of Submarine Cables and Ensuring the Safety of International Telecommunications, No. 30/2007, adopted 13 of December 2007, Prime Minister of the Socialist Republic of Vietnam, available at the ICPC Members Database. 34 For submarine cables legal regime in Uruguay see Maritime Provision on the Limitation on Use of Fishing Gear in the Following Areas, No. 128, adopted 22 of February 2011, National Naval Prefecture of the Republic of Uruguay, available at the ICPC Members Database. 35 For submarine cables legal regime in the Russian Federation see The Code Of Administrative Offences Of The Russian Federation, No. 195-FZ, adopted 20 of December 2001, State Duma and Council of Federation, Article 9.7, available at the World Intellectual Property Organization website at http://www.wipo.int/edocs/lexdocs/laws/en/ru/ru073en.pdf, last visited 01/09/2020. 198 submarine cables. Thus, the aspect of comparison in the framework of this sub-section is the obligation of a state to enact that damage to a cable is considered as a punishable offence in domestic legislation. It is complemented by a sub-question of how states qualify cable damage, as a criminal or as an administrative offence. This comparison provides an insight of a level of regulation that states have in their domestic legal orders.

The choice of particular states and national laws to be examined is carefully made. The ICPC Members Database36, an authoritative legal database contains national laws on submarine cables of individual states. Also, it comprises documents, and recommendations of the ICPC. Based on the author’s access to the database, analysis of internal materials, and taking into consideration texts of laws available in English, the choice was made in favor of the following states: New Zealand, Denmark, and the Russian Federation as representatives of the groups addressed by the previous sub-section. After examination of their domestic laws, it appeared that these states constitute an illustrative representation of divergence in states’ domestic regulation. Furthermore, these states comprise different characteristics such as geographical location, size, historical, political, and economic distinctions. Experience of these states is demonstrative in relation to the establishment of a liability for damage to submarine cables (a concrete obligation under the UNCLOS) and as a general indicator on the state of development of domestic law on submarine cables.

1) New Zealand

New Zealand’s Submarine Cables and Pipelines Protection Act, 199637 is a separate document explicitly designed for protecting cables and pipelines in different maritime zones. Part 2, Section 7 titled “Liability in respect of damage to cable or pipeline” provides:

36 ICPC Members Database (limited access), available at https://www.iscpc.org, last visited 01/09/2020. 37 Submarine Cables and Pipelines Protection, Act No. 22, op.cit., section 11. 199

“A person who, in the course of laying or repairing a submarine cable or submarine pipeline of which the person is the owner, damages another submarine cable or submarine pipeline, is liable for the cost of repairing that damage, and such liability (a) is in addition to any other liability to which the person may be subject; and (b) applies whether or not— (i) the damage to the submarine cable or submarine pipeline was caused by that person’s negligence; or (ii) the person has been convicted of an offence relating to that damage”.

Section 11 titled “Offence to damage submarine cable or pipeline” of the same part also prescribes:

“(1) Every person commits an offence and is liable on conviction to a fine not exceeding $250,000 who— (a) wilfully or negligently either damages, or causes or permits a ship or equipment belonging to a ship to damage, a submarine cable or submarine pipeline; or (b) is the owner or master of a ship that is used in the commission of an offence against paragraph (a)…”.

In the case of New Zealand, it can be distinguished that this state devotes an adequate attention to submarine cables and provides clear regulation regarding compared aspect. It might be explained by the distant geographical location of the country. New Zealand as an island employs submarine cables as one of the most important tools of communication with the external world38. The provision establishes that a person responsible for cable break is liable for the cost of repair and shall be adequately punished. The amount of fine for damage to submarine cables is appropriate in comparison with other states’ sanctions given that New Zealand considers an act of damage as a severe offence.

The Act has extraterritorial effect and applies not only to a person committed offence within the territorial sea or internal waters of New Zealand. It also applies to a person on board or by means of a

38 C. Gerlach, R. Seitz, “Economic Impact of Submarine Cable Disruptions”, Asia- Pacific Economic Cooperation Policy Support Unit publication, December 2012, pp. 1-87, p. 17, available at https://www.apec.org/- /media/APEC/Publications/2013/2/Economic-Impact-of-Submarine-Cable- Disruptions/2013_psu_-Submarine-Cables.pdf, last visited 01/09/2020. 200

New Zealand ship in the high seas, or by a New Zealand citizen or a person ordinarily residing in New Zealand on board or by means of a ship, other than a New Zealand ship, on the high seas.

One more aspect to be explicitly emphasized is the gradation of punishment depending on the subject of offence. It might be a master of vessel or a subject involved in laying a new cable (professional actors of submarine cables industry that presumed to have more knowledge on preventive measures) or an ordinary person who presumably is less aware about submarine cables and their location. The liability also varies depending on where the offence is committed. That might take place in any maritime zone subject to previously described provisions, or in specifically designated submarine cables protected areas. According to Section 15 of the Act, committing an offence in submarine cables protected areas is subject to a fine of one hundred thousand New Zealand dollars. It applies if the offence is committed in the course of conducting an activity for producing a commercial gain or a vessel, performing an activity that has, as its predominant purpose, making of a commercial gain, is used in commiting the offence. This provision aims to address numerous commercial fishing ships operating off the coast of New Zealand often appearing excessively close to the cable ship. Provided that such ships are not members of submarine cables industry, the fine is lower than for professional actors in submarine cables area. Finally, the lower fine is established if the offence is committed otherwise (not subject to any of the circumstances listed above). The fine, in this case, is not exceeding twenty thousand dollars.

To conclude, New Zealand has distinctive and various provisions dedicated to submarine cables. They are adapted to temporary needs and collected in a separate legal document concerning submarine cables with the purpose of comprehensive regulation of the topic.

2) Denmark

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Denmark’s legal regulation of submarine cables is represented by the Order on Protection of Submarine Cables and Pipelines39 (the “Order”). Although being a separate document addressing submarine cables and pipelines, it appears that it has less legal force than New Zealand Submarine Cables and Pipelines Protection Act. The Order shall be implemented pursuant to the Act on Safety at Sea40 making the Order a complementary instrument to another legal act. In New Zealand, provisions contained in the Submarine Cables and Pipelines Protection Act are independent and self-sufficient provided that they are entirely described in one document without any reference to other laws while provisions of the Order are considered in continuation to another legal document. Furthermore, the Order is not specific in relation to submarine cables to the same extent as New Zealand Submarine Cables and Pipelines Protection Act. It serves as a starting point for submarine cables and also for other areas of regulation that makes it more general than cables oriented.

Although the legal status of a document does not necessarily reflect how regulation applies in practice, executive orders are designed to be detailed. At the same time, the Order on Protection of Submarine Cables and Pipelines in Denmark contains fewer amounts of provisions than the Act in New Zealand. It does not regulate several important issues such as, for instance, special terms (definition of a submarine cable and owner of a submarine cable), fails to provide a detailed description of measures to be taken if cable break occurs, and lacks guidance on how to report a cable break.

Defining the act of damage to submarine cable as an offence, the Order briefly mentions that:

39 Order on the Protection of Submarine Cables and Pipelines, No. 939, op. cit., Section 4. 40Act on Safety at Sea (Lov om Sikkerhed til Søs), Consolidated Act no. 72, adopted 12 of July 2007, Danish Maritime Authority, available at https://www.dma.dk/Vaekst/Rammevilkaar/Legislation/Acts/Promulgation%20 of%20the%20act%20on%20safety%20at%20sea.pdf, last visited 01/09/2020. 202

“any person violating this Executive Order shall be liable to a fine”41. The liability established in this provision is not designed exclusively for damage to submarine cables and also refers to other wrongful acts provided by the Order. Following this provision Annex 1, section 1 states:

“Anyone damaging submarine cables shall incur criminal liability and possible liability for damages according to the circumstances”. There are no specific amounts of fines or rules on how liabilities should apply in contrast to the case of New Zealand. Regarding criminal liability, the Order does not specify the punishment, does not establish minimum and maximum limits, and contains no further reference to a source where this criminal liability can be found. Logically Danish Criminal Code should include these provisions. However, there is no direct reference to it that complicates the comprehension of the entire process. Especially for foreign nationals not familiar with Danish penal system. Vessels proceeding through Danish maritime zones usually fly flags of different states and carry a team of the multi-national crew. Nevertheless, they are expected to comply with domestic rules notwithstanding unclear provisions of national legislation difficult to follow in practice.

The Order instead of directly prohibiting damage to cables prescribes that:

“ships shall not, unless absolutely necessary, anchor within areas designated for submarine cables and pipelines of any kind (pipelines for carrying hydrocarbon et cetera), and such areas which include the associated protection zones”42. Following this provision, the Order also states:

41 Order on the Protection of Submarine Cables and Pipelines, op. cit., Section 7. 42 Ibid, Section 1. 203

“Furthermore, within the protection zones, dredging, boulder removal and any use of equipment et cetera. dragged across the seabed shall be banned”43. The wording “shall not” instead of “it is prohibited” may also be considered as reflecting the difference. New Zealand’s Act contains a separate section “Prohibition on certain activities in protected areas” while in the Order the formulation “shall not” commonly appears.

Generally, Denmark has completed its obligation under the UNCLOS to establish the liability for damage to submarine cables in its domestic legal order. However, the legal order lacks several significant aspects and the legal force of the main act regulating submarine cables appears to be insufficient. Nevertheless, example of Denmark might be considered as a relatively successful regulation of submarine cables on national level.

3) Russian Federation

The third domestic legal order represents the law of the Russian Federation. Submarine cables legal regime in this state appears to be controversial. It provides several progressive provisions that can be highly evaluated. At the same time, the whole regime of submarine cables can be considered as complicated and lacking several essential points.

The Russian Federation’s regulation in the field of submarine cables does not include a separate document dedicated to submarine cables, as in the case of two previous domestic legal orders. It consists of several instruments including federal laws providing with basic rules and governmental regulations, containing more detailed provisions. All legal acts constitute national implementation of international obligations taken by the Russian Federation, in particular, under the UNCLOS. Rules governing the presence of submarine cables in Russian maritime zones are distributed over various legal instruments with different legal force. A dispersed system of relevant provisions

43 Ibid, Section 2. 204 and need to search for them in various sources complicates laying of submarine cables in Russian’s maritime zones.

Concerning the compared aspect, the Russian Federation offers a specific solution. The Russian Federation’s Code of Administrative Offences having the status of federal law establishes the liability:

“Damaging electric power circuits which carry a voltage of up to 1000 volts (aerial, underground and underwater electric power cables and connection and switching devices) – shall entail the imposition of an administrative fine on citizens in the amount of one thousand to one thousand five hundred roubles, on officials in the amount of two thousand to three thousand roubles, and on legal entities in the amount of twenty thousand to thirty thousand roubles” 44. The degree of liability provided by the Code of Administrative Offences for damage to submarine cables is minimal and does not correlate with the consequences that may occur as a result of such damage. Comparing with a high fine in New Zealand and criminal liability in Denmark, the Russian Federation contains only administrative fine and offers limited regulation of the issue.

There is one more provision determining another offence relating to submarine cables damage. It is considered to be more serious and establishes a higher fine. The Code of Administrative Offences provides that:

“Unauthorized installation or bringing to the territory of the Russian Federation of underwater cables, pipelines or tunnels, as well as violation of the rules of their installation, or of bringing to the territory of the Russian Federation, or of operation in the internal sea waters, in the territorial sea, on the continental shelf and (or) in the economic exclusion zone of the Russian Federation - shall entail the imposition of an administrative fine on officials in the amount of fifteen thousand to twenty thousand roubles with or without confiscation of the vessel and of other instruments of committing the administrative offence; and on legal entities in the amount of two hundred thousand to three hundred

44 The Code Of Administrative Offences Of The Russian Federation, No. 195-FZ, op. cit., Article 9.7. 205

thousand roubles with or without confiscation of the vessel and of other instruments of committing the administrative offence”45. This provision contains stricter penalties that nevertheless do not adequately correspond to possible consequences of cable damage such as cancellations or delays in voice and data traffic, discontinuance of oil and gas platforms at sea, mobile and Internet traffic disruptions. In the Criminal Code of the Russian Federation46 there is no corpus delicti including damage to submarine cables committed intentionally or by negligence. At the same time, the Russian criminal law provides legal protection to submarine pipelines having similarities with submarine cables. Although in many documents, especially in governmental regulations, cables and pipelines are mentioned together, in the Criminal Code there is no reference to submarine cables. It might be of advantage to include provisions establishing responsibility for damage to submarine cables causing severe consequences and committed intentionally to the Russian Federation’s Criminal Code.

Responsibility to enact provisions qualifying acts of causing damage to submarine cables as a punishable offence in domestic legal orders was completed by all three states. Despite the completed responsibility, approaches used by states to address this matter differ significantly. New Zealand justified its status as a state with detailed and well-constructed legislation in compliance with modern needs in comparison to non-comprehensive and less developed legislation of Denmark and the Russian Federation.

B) PRIVATE INTERNATIONAL LAW: STANDARD PROVISIONS OF CONTRACTS

As analyzed in chapter II, the legal regime of submarine cables is a hybrid regime characterized by a complex nature and is subject to

45 Ibid, Article 8.17(3). 46 The Criminal Code of the Russian Federation, No. 63-FZ, adopted 13 of June 1996, State Duma and Council of Federation, available at https://www.wto.org/english/thewto_e/acc_e/rus_e/WTACCRUS48_LEG_6.p df, last visited 01/09/2020. 206 several levels of regulation. Such multi-level regulation implies that apart from public international law and domestic legislation of states submarine cables are subject to the regulation by private international law. The majority of submarine cables projects are international projects including participation of private companies coming from different jurisdictions. Moreover, such projects are also subject to several jurisdictions and constitute private relations with a foreign element. Thus, this section examines private international law provisions regulating submarine cables.

1. Legal nature of private contracts relating to submarine cables

Main instruments developed by submarine cables industry are submarine cables installation and maintenance contracts. Cable projects performance is a challenging task that requires work force, remotely operated vehicles, cable ships, divers, and other subjects involved. In order to settle all issues, the cable industry has elaborated its standard provisions of contracts concerning installation, transportation, reparation and other numerous services relating to submarine cables.

The legal nature of such contracts can be characterized as best practices and guidelines used by the cable industry. In other words, they constitute soft law in the sense provided in the last section of chapter V. These contracts are adopted by various non-governmental subjects such as FIDIC (Fédération Internationale Des Ingénieurs- Conseils/International Federation of Consulting Engineers)47, a global representative body for national associations of consulting engineers48; or Norwegian Oil and Gas Association, a professional body and association of employers for oil and supply companies49; or

47 FIDIC (Fédération Internationale Des Ingénieurs-Conseils /International Federation of Consulting Engineers), website available at http://fidic.org/, last visited 01/09/2020. 48 FIDIC website, section “About FIDIC”, available at http://fidic.org/, last visited 01/09/2020. 49 Norwegian Oil and Gas Association (Norskolje&gas) website, section “About”, available at https://www.norskoljeoggass.no/en/about-us/, last visited 01/09/2020. 207 by cable industry players themselves meaning owners of submarine cables in the case of cable maintenance agreements.

These contracts are non-binding and parties are not obliged to follow their standards. However, it is highly desirable to obey such recommendations to be on the same level with other actors in cable industry. Therefore, representatives of the cable industry tend to follow such provisions since the regulation provided by them adequately reflects their needs. Otherwise, it appears to be difficult to interact with counterparties and manage mutual reasonable expectations. Commonly used standards provide for greater legal certainty, unanimous interpretation, and transparency.

In contrast to resolutions of international organizations also considered as instruments of soft law addressed in chapter V, the content of submarine cables contracts appears to be more precise. Provisions are concrete, verbs describing obligations sound as obligations and procedure for dispute settlement is anticipated. Contracts are not formulated as declarations or intents. They contain specific norms that can be directly applied by interested subjects as analyzed below.

2. Contracts on the installation of submarine cables

Over time the cable industry has elaborated common rules and standards to regulate activities relating to submarine cables between private parties. They consist of summarized practices that many representatives of the cable industry utilize in practice. In particular, standard provisions of submarine cables installation contracts aim to facilitate laying of cables process. Although terms of every particular contract are negotiated individually generally the same legal norms are used by cable companies to put technical activities into a legal order. a. Common practice

1) FIDIC standards as a universal model

208

Standard provisions widely used in cable installation practice often derive from FIDIC contracts. FIDIC as an international organization aims to facilitate, organize, and support activity on various constructing operations including laying of submarine cables. It has created several standard contracts that are now widely utilized in cable industry.

The Yellow book50 deserves specific attention in this context. It was first designed in 1999 and currently continues to govern contracts on construction including construction of submarine cables. Legal and engineer professionals together developed terms of contracts contained in the Yellow book with the aim to balance law and technical issues arising when laying a cable. Contracts are introduced in English that specifies the international nature of cable-related processes. They are adapted for all participants and based on the common law legal system with some components from the system of civil law.

To date there is no agreement in public international law addressing issues regulated by FIDIC Yellow book. Provisions of the United Nations Convention on Contracts for the International Sale of Goods51 (CISG) could be used for cable installation contracts given that relations arising between parties in cable contracts constitute sale of goods, although extraordianary goods such as submarine cables. However, not all provisions of CIGS apply in the case of submarine cables. For instance, parties of a contract must be established in different states, and such states should be signatories to the CISG52. This and some other provisions are not always met by cable contractors. The convention covers ‘sales contracts’ and

50 Yellow Book (Conditions of Contract for Plant and Design-Build) is a suite of standard forms of contracts for use on international construction and engineering projects developed by the FIDIC. First edition was published in 1999 with subsequent editions currently in force. 51 Convention on Contracts for the International Sale of Goods (CISG), concluded in Vienna 10 of April 1980, entered into force 1 of January 1988, S. Treaty Doc. 98-9 (1983); A/CONF.97/18 (1980); 19 ILM 668 (1980); 52 Fed. Reg. 6262-6280, 7737 (1987); 1489 UNTS 3. 52 Ibid, Article 1 (a). 209

‘delivery contracts’ where party that orders goods does not supply the material53. Contracts relating to delivery of goods including performance of works and services are excluded from the scope of the CISG54. Provided that cable construction contracts encompass planning and conduct of engineering and construction works or services, the CISG does not apply to such contracts. In these circumstances, the Yellow Book appears to be valuable legal instrument to regulate the issue of submarine cables construction.

2) Norwegian Subsea Contract NSC 05 as an example of local model

Apart from FIDIC rules and the CIGS, some other regulating initiatives can be found in practice. For instance, Norwegian Subsea Contract NSC 0555, a special document developed by the Norwegian Oil and Gas Association56. It contains standard terms developed for contracts within the subsea segment on the Norwegian continental shelf. The Contract covers agreements for marine operations of subsea construction activities including installation of pipelines, other subsea structures, and submarine cables. A standard form predominantly regulates construction works and installation of submarine cables. When initiating the project of a new submarine cable, parties would first apply to the form provided by the Contract and then adapt it for their own needs. Apart from serving for projects performed in Norwegian maritime zones the Contract also might be taken as a basis for projects planned in any other jurisdiction. However, it is constructed in accordance with Norwegian law and is governed by it that should be subject to adaptation in every particular case. In the Great Britain, the industry association United Kingdom Oil & Gas Industry Association has

53 Ibid, Article 3 (1). 54 Ibid, Article 3 (2). 55 Norwegian Subsea Contract NSC 05, Conditions Of Contract, a model contract developed by companies Statoil, Stolt Offshore, Subsea 7 and Technip Offshore Norge, April 2005, available at https://www.mercell.com/m/file/GetFile.ashx?id=68798217&version=0, last visited 01/09/2020. 56 Norwegian Oil and Gas Association website, op. cit. 210 also produced model agreement for pipeline crossings57 pursuing the same goal. b. Standard provisions of submarine cables installation contracts58

To install and maintain a cable system, cable industry often appeals to standard forms of contracts such as instruments examined in the previous sub-section that are recognized and accepted by the majority of participants. This choice appears to be reasonable due to complex negotiations and time-consuming process of reaching agreement between two parties. Standard forms aim to reduce this problem simplifying the process and reducing feasible delays.

Private law contracts regulating installation of submarine cables constitute their distinguishing feature. In contrast, satellite systems are historically based on international law treaties between states59. The increase in the commercial use of submarine fibre optic cables after 1990th provoked decentralization and privatization and accordingly shifted this area to the level of private law60.

The analysis of contracts’ provisions addressing various matters relating to submarine cables is provided in this sub-section.

57 For the UK, for Oil and Gas UK, see Pipeline Crossing Agreement & Proximity Agreement Pack October 2015 (OP115), available at http://oilandgasuk.co.uk/product/pipeline-crossing-agreement-proximity- agreement-pack-october-2015/, last visited 01/09/2020. 58 The information presented in this section was obtained during the email conversation with Imke Bischoff, a Contract Manager at Siem Offshore Contractors GmbH as well as from a phone call with Amy Barad from Med Mer Ltd. As representatives of private companies, they are not allowed to share concrete internal documents. However, they kindly agreed to share their experience how submarine cables industry is currently working that was further analyzed and presented in this section. Also, the Model Contract with Guidelines for the Construction of a Submarine Cable System prepared by SubOptic was used, available at https://suboptic.org/wp- content/uploads/2014/10/Model%20Contract%20Contract%20with%20Guidelin es%20for%20the%20Construction%20of%20a%20Submarine%20Cable%20Syste m.dot, last visited 01/09/2020. 59 S. von Schorlemer, “Telecommunications…”, op.cit. p. 1. 60 Ibid. 211

1) Parties and scope of a contract

These two elements are inherent provided that no contract can be concluded without mentioning parties and clarifying their rights and obligations. Thus, standard inclusion of parties into installation contracts as well as their main substantial provisions are analyzed below.

Parties in cable contracts are usually titled “purchaser” (a party that receives and owns the newly installed cable with all surrounding facilities) and “contractor” (a party that undertakes to install and maintain cable system). Cable contracts commonly involve several companies considered as one party in the contract (a consortium of purchasers) and several companies on the other side of the contract (a consortium of contractors), forming a joint venture to arrange construction of a submarine cable. It comes as a consequence of multiplicity and complexity of services to be completed during the cable installation. In some contracts, parties appear to be a single purchaser and a single contractor. However, multiple companies representing one party seem to be a more typical situation for the cable industry. In the case of several contractors, responsibilities, as well as the level of liability for breach of a contract, should be specified in detail for every participant.

Some contracts have a “coming-into-force” clause, providing that a contract does not come into force until some later date and upon certain circumstances. However, this provision has a severe disadvantage as the status of contract and parties’ rights and obligations remain unclear between the date of signature and the coming-into-force date. The contract, although signed, has pending status. Therefore, some companies agree that contract shall come into force upon signature on condition that some or all of parties’ obligations do not become effective until one or more clauses is satisfied.

All submarine cable installation projects start with the conduct of a detailed survey of cable route including land-based and marine areas. For these purposes parties agree on cable type and length, cable ship

212 to be engaged in services and expected days for installation. However, only approximate installation term can be agreed at the time of signing the contract since it can be prolonged due to technical and administrative delays. Such delays may include re- routing of cable with the purpose of avoiding areas of environmental sensitivity, removal of out-of-service cables, payment of fees to local authorities, et cetera. The same applies to amounts dedicated to route survey. They may significantly vary, and to prevent disputes, parties frequently agree on maximum additional payment due to route variations. Alternative option would be to perform a route survey under a separate contract preceding cable installation contract.

Apart from cable installation itself, a contractor should also arrange for the construction of terminal stations and other surrounding facilities. Contracts usually specify relevant details of such stations and time frames when they must be ready for exploitation. Parties concretize life term of the cable meaning years that cable system is designed to be in force under regular use and service conditions. Average submarine cable life term accounts to twenty-twenty five years61 although it may vary due to developing technologies, length of cable, location and surrounding environmental conditions.

Parties agree on the plan of work that may be changed only upon purchaser’s prior written consent. Milestones of work are subject to provisional acceptance certificates, and the whole completed work is accepted under the closing certificate of acceptance clearly specifying the final completion. Stages of work and detailed technical description are designed in the form of annexes carefully describing each milestone.

When installation works are completed, parties usually agree on test specifications and schedule such tests. It appears to be difficult to entirely define test specifications at the time of signing a contract. Therefore, sometimes parties agree during negotiations that the final

61 L. Carter, D. Burnett, “Subsea Telecommunications…”, op. cit., p. 356.

213 schedule of tests and test periods to be specified later allowing purchaser to review and agree on them as they become available. Parties may also agree on providing cable laying reports submitted by the contractor on a regular basis, informing purchaser about the course of work.

2) Financial obligations and authorizations

During the installation of a new submarine cable financial obligations such as billing and payment conditions are crucial for both parties to follow terms of work and successfully complete the project. Moreover, authorizations and permissions from coastal states to be obtained during the process also influence the schedule and completion time. These aspects are considered in the present sub- section.

Provided that cable installation projects are expensive, typical contracts contain a pre-performance provision obliging purchaser to pay the down payment within several days after the date of signature. As a response, contractor should provide purchaser with the performance bond. After these actions mutual obligations under the contract come into force. Following the first payment, all subsequent payments are also subject to parties’ agreement.

Frequently billing schedule is drafted as installments of the contract price at fixed calendar dates or upon the achievement of predetermined milestones corresponding to major parts of the work. In the case of several companies acting as a single purchaser, one of them ordinarily acts as the central billing party, and all invoices are addressed to it.

Parties often limit their liability under submarine cables installation contracts on the basis of contract breach, statutory warranties, and non-performed conditions. Alternatively, parties agree that purchaser’s and contractor’s liability shall not exceed certain percentage of the contract price. However, if a purchaser does not pay amounts agreed in the contract within a certain amount of time agreed by the parties, the contractor in addition to other remedies

214 may suspend performance of works under the contract. Furthermore, the contractor may terminate the contract any time if the purchaser, for instance, commits any material breach of the contract, files a voluntary petition for bankruptcy, insolvency, or other similar liquidation procedures. However, contractors rarely terminate contracts on such grounds and enter negotiations to solve the issue. Provided that works have been already started, no party desires to stop a process in the middle. In the case of several companies acting on the side of a purchaser, other companies have remedies to stabilize the situation convincing defaulting purchaser to take necessary steps. If the contract is decided to be terminated, parties should deliver notice of termination to each other specifying reasons for contract termination and date upon which the other party should stop performing its obligations.

All permits, authorizations, licenses, as well as payment of taxes during the cable laying process, are generally on the contractor’s account. These formalities should be followed in every jurisdiction where a submarine cable is planned to be laid. Prior to physical landing of cable on the seabed contractor should apply and get all permissions from relevant authorities of coastal states necessary to perform cable installation services and shall pay all related fees under current domestic laws. However, the purchaser shall assist the contractor with getting all necessary permissions if they can be obtained only by his actions and upon his name. It is considered to be one of significant stages in a cable laying process.

A contractor is often responsible for transferring necessary equipment to the place of works and for paying compensation to any non-party to finish the installation process. This might be relevant, for instance, when submarine cable laying process affects fishing industry, and compensation should be paid to fishermen to reimburse them for suspending activities in the area. A purchaser should provide the contractor with information and necessary documentation for all actions specified above and finally recompense all amounts spent on such actions upon corresponding invoices.

3) Delivery of work and termination of a contract

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To prevent possible deviations and delays and ensure timely delivery of works purchaser typically has the right to access and inspect land- based milestones of works as long as it does not impede their performance. The same applies to milestones performed in the sea. However, purchaser’s personnel remain under the master of vessel’s command and should follow all instructions under safety requirements.

Upon the completion of all works, the right to cable system passes to purchaser at the date of final acceptance certificate or with the final installment of a contract price. Before transfer of title, a purchaser is typically obliged not to place in service submarine cable system or any part thereof without contractor’ prior consent due to safety requirements. With the transfer of the cable system as material infrastructure, software to the system also moves to the purchaser. It is granted a non-exclusive, nontransferable, royalty-free license including the right to make reasonable number of copies for backup purposes.

During the warranty period, the contractor is responsible for all necessary repairs, technical support, and supply of cable parts on his own cost and in a reasonable time. It also bears all costs in connection with the operation of a cable ship responsible for repairs. Generally, all post-laying services are meticulously described in technical specifications agreed by parties. Along with that, it appears to be problematic to distinguish breaks occurring within the warranty period and beyond it. Therefore, sometimes parties agree on patterns of failure listing all breaks based on cable industry experience. However, the contractor should not be liable for any cable damages caused by negligence, failure to follow instructions or improper repairs on purchaser’s side.

4) Special provisions

There are certain specific provisions differentiating contracts on submarine cables installation from other contracts in the field of construction. Thus, environmental requirements and force majeure provisions are addressed in this sub-section.

216 i. Environmental requirements

Clauses relating to the protection of marine environment comprise peculiarity of submarine cables installation contracts. Although the impact on the marine environment from cables is considered to be minimal, parties include environmental provisions to agreements. Oftentimes, contractor is obliged to indemnify purchaser against all losses and liabilities for environmental damage directly caused during the performance of contract. An inherent term of any cable installation contract is the obligation of contractor to follow all environmental requirements necessary for laying cable in accordance with domestic laws. For instance, to conduct ecological expertise. Apart from it, the contractor should collect or recycle equipment left on the seabed after cable installation. States’ requirements on this matter may vary significantly depending on domestic jurisdiction. Local laws usually oblige to collect and recycle cable equipment providing different mechanisms and rules. Some contracts require a sub-contractor to comply with the International Organization for Standardization’s standard on Environment Management System Certification (ISO 14001)62 as a guarantee for its safe services. Also, the purchaser is often entitled to carry out an environmental audit. ii. Force majeure

Special consideration is given in cable installation contracts to force majeure provisions due to complexity of formulating unforeseen circumstances. For instance, what should be appraised as inclement weather conditions justifying interruption of works performed by contractor. Sometimes parties define unworkable weather as conditions that are worse than would reasonably be anticipated on the basis of the meteorological records for the preceding several years, usually ten-years period. Alternatively, parties define them considering different capabilities of vessels according to their class and size and by specifying the type of work they may perform. The third option is to rely on judgment of master of the vessel subject to

62 International Organization for Standardization, ISO 14001:2015, Environment Management System Certification, 2015, available at https://www.iso.org/iso- 14001-environmental-management.html, last visited 01/09/2020. 217 reasonable standards to make decisions regarding safety of the vessel and all persons and property onboard. When force majeure circumstances occur, each party should promptly notify another party and exercise all reasonable efforts to perform its duties not affected by force majeure circumstances.

3. Cable maintenance agreements

Due to complexity and multiplicity of services relating to submarine cables during installation and maintenance processes, it appears to be difficult to name the contract that parties enter. Maintenance agreements are unique contracts and can be characterized as a contract for works, contract for services, construction or engineering contract, and sales contract at once. Cable maintenance agreements constitute “agreements whereby, for efficiency and economy, cable owners pool together as a regional contractual consortium to charter one or more cable ships to dedicate to the repair of cable systems owned by the parties to the agreement”63.

Cable maintenance agreements are divided into two types. Worldwide Zone Cable Maintenance Agreements are concluded between several cable owners and ensure normal operation of submarine cables in particular areas worldwide. Private Maintenance Agreements mainly include similar services with the difference that such contracts are concluded with recognized marine services providers on an individual basis64. a. Worldwide Zone Cable Maintenance Agreements

Currently there are five zones where special agreements regulate submarine cables. These agreements divide the territory of the World Ocean into several areas that cover large maritime spaces. Within such zone agreements, necessary services are provided to submarine

63 D. Burnett, “Recovery of Cable Repair Ship Cost Damages from Third Parties That Injure Submarine Cables”, Tulane Maritime Law Journal, vol. 35:103, 2010, pp. 103-123, p. 106. 64 D. Burnett, R. Beckman, T. Davenport, Submarine Cables: The Handbook…, op. cit., p. 155. 218 cables on a regular basis including cable ship support permanently available to conduct necessary repairs in case of damage.

These agreements may vary in form, however, their legal nature and structure remain similar. Users (several cable owners having submarine cables in the same area) pay a fixed fee for a cable ship able to reach the location of cable break in twenty-four hours. It covers services of the ship ready for any repairing operation and costs for the cable break including fuel, workforce, supply, materials, et cetera. Additionally, a fixed fee is charged for storage of cable equipment necessary for cable operations that might be easily accessed by a cable ship in storage places. Such storage places are typically located in the vicinity of base ports of cable ships providing cable repairing and support services65. Payment is normally made on year-end adjustment, and if actual costs for year services exceed the amount kept in the pool, contractor charges additional fees from cable operators66. Cable owners’ representatives review and audit the costs incurred by a cable ship engaged in repair operations based on detailed reports prepared by cable ship’s crew.

The following zone agreements currently exist in the world: North America Zone Agreement (NAZ67), Atlantic Cable Maintenance & Repair Agreement (ACMA68), Mediterranean Cable Maintenance Agreement (MECMA69), South East Asia and Indian Ocean Cable Maintenance Agreement Extended (SEAIOCMA70) and the Agreement for the Maintenance

65 D. Burnett, “Recovery of Cable Repair Ship…”, op. cit., p. 113. 66 Ibid, p. 110. 67 North America Zone Agreement website, available at http://www.northamericazoneagreement.com/, last visited 01/09/2020. 68 Atlantic Cable Maintenance & Repair Agreement website, available at http://www.acma2017.com/, last visited 01/09/2020. 69 Mediterranean Cable Maintenance Agreement website, available at http://www.mecmamc.org/public/, last visited 01/09/2020. 70 Global Marine, South East Asia and Indian Ocean Cable Maintenance Agreement Extended until end 2017, available at http://www.globalmarine.co.uk/news/south-east-asia-and-indian-ocean-cable- maintenance-agreement-extended-until-end-2017.html, last visited 01/09/2020. 219 of Pacific Ocean Cable Systems in the Yokohama Zone (YOKOHAMA71). There is also an additional Pacific and Indian Ocean Cable Mutual Agreement (PIOCMA72) comprised of NAZ, YOKOHAMA and SEAIOCMA agreements. It serves for providing support in case of serious accidents such as natural disasters by supplying materials, chartering additional cable ships, and providing repairing operations to consortiums members.

Initially the idea of creating such zones was to eliminate the need to enter a contract with a cable ship operator for maintenance of the cable on the individual basis. After the number of submarine cables laid in the same area increased that made individual services contracts inconvenient, zone maintenance agreements that allow sharing maintenance costs became common. The idea of zone division is not new provided that the first zone agreement covering North Atlantic region, currently known as ACMA, was concluded in 1965 73.

A variety of cable owners may have submarine cables in one area. To ensure their continuous operations submarine cable provider is granted the right to conduct repair operations and provide services to all companies for certain compensation. Usually service agreement between cable owners and maintenance provider remains in force for several years (most commonly five years) with the possibility of prolongation. However, if cable owners are not satisfied with services provided by the current maintenance provider, they can engage another provider after the expiry of a contract period or due to a breach of the contract by the provider.

Before entering contracts submarine cable maintenance providers search for customers and make a description of their services

71 The Agreement for the Maintenance of Pacific Ocean Cable Systems in the Yokohama Zone website, available at http://yokohamazone.com/index.php, last visited 01/09/2020. 72 Pacific and Indian Ocean Cable Mutual Agreement website, available at http://piocma.com/piocma_overview.htm, last visited 01/09/2020. 73 D. Burnett, R. Beckman, T. Davenport, Submarine Cables: The Handbook…, op. cit., p. 33. 220 publicly available74 given that agreements are ordinarily open to new members that can join them anytime. Some maintenance agreements reflect long-term partnerships between parties and last for dozens of years. For instance, South East Asia and Indian Ocean Cable Maintenance Agreement was first concluded in 1986 between cable owners and the company Global Marine that currently continues to provide services for more than thirty years.

Some zones include telecommunications submarine cables owners and owners of power cables supplying offshore wind and oil platforms at sea. These zone agreements may also cover private submarine cables owned by a single company. They receive same services as international cables. Thus, Google and Facebook, for instance, already have their own, private submarine cables75 used for internal purposes and maintained on the similar basis with other cables. b. Private Maintenance Agreements

Apart from consortium agreements where cable costs are shared between all participants, another type of agreements concluded between private parties is titled Private Maintenance Agreements.

There are several Private Maintenance Agreements nowadays such as Atlantic Private Maintenance Agreement (APMA), including companies MED, ASN and SubCom; Asia Pacific Private Maintenance Agreement (APMMSA) including ASN and SubCom companies; Northern Pacific Zone (NPMMSA) with SubCom; South

74 See, for instance, Atlantic Cable Maintenance & Repair Agreement (ACMA) website, Section “Services”, available at http://www.acma2017.com/, last visited 01/09/2020; or Mediterranean Cable Maintenance Agreement website, Section “Services”, available at http://www.mecmamc.org/public/, last visited 01/09/2020. 75 D. Burnett, R. Beckman, T. Davenport, Submarine Cables: The Handbook…, op. cit., p. 42. 221

Pacific Zone with ASN; Red Sea, Persian Gulf, Indian Arabian Sea with E Marine; South African Agreement with Orange Marine76.

Private Maintenance Agreements do not necessarily include one company from each side. However, it is implied that cable services are provided on an individual basis. One more distinction from zone agreements is that private contracts usually cover all stages of cable construction and maintenance. In many cases, cable laying contracts are signed with the condition of further maintenance of the whole cable system meaning that the same contractor supports the operation of the cable after its installation. In contrast, zone agreements are concluded exclusively for the maintenance stage while cable construction is conducted under separate installation agreements.

Maintenance agreements occasionally include subcharter provisions. Cable ships chartered under the maintenance agreement may be subchartered to a third-party for cable repair operations elsewhere. This provision is negotiated on an ad hoc basis and requires careful consideration by all cable owners in the cable maintenance agreement77.

Contract clauses included in the present analysis are based on English common law, a highly developed body of law in commercial and financial matters, often chosen by parties in cable contracts. Therefore, parties usually agree to solve disputes in arbitration procedures held in the English language in London, in accordance with the Rules of Arbitration of the International Chamber of Commerce.

Private maintenance agreements are designed to address the needs of a specific cable project on an individual basis. However, associated

76 D. Veverka, “Submarine Cables: O&M and Cable Maintenance”, Report at Pacific Telecommunications Council (Part 2), International Cable Protection Committee, 18 of January 2015, available at https://online.ptc.org/assets/uploads/papers/ptc16/SUN_Submarine%20Cable %20WS_Veverka%20Dean.pdf, last visited 01/09/2020. 77 D. Burnett, “Recovery of Cable Repair Ship…”, op. cit., p. 110. 222 costs, limited area of operation, and dependence on the counterparty make private maintenance agreements less popular among cable industry actors. Thus, Worldwide Zone Cable Maintenance Agreements cover the majority of submarine cables in the world.

Standard provisions of contracts contribute to the development of common practices, facilitate faster negotiations between parties and appear to be widely used in practice. Although standard contract provisions serve for the needs of cable industry, every contract requires negotiating efforts given that each cable project is performed under different circumstances.

Submarine cable installation and maintenance contracts are similar to other contracts concluded in the construction area. However, they contain certain peculiarities characterizing this industry. A well- developed legal regulation of activities concerning laying and maintenance of submarine cables on domestic and private law levels is essential given that international law cannot progress distantly from other levels of regulation. Submarine cables connect different parts of the world and simultaneously serve the needs of many states. Therefore, comprehensive legal regime of submarine cables should include a developed regulation of international law, states’ national legislation and private law level.

223

THIRD SECTION CHANGING AND IMPROVING THE INTERNATIONAL LEGAL REGIME OF SUBMARINE CABLES

The last three chapters constituting the third section focus on the profound analysis of problems of the legal regime of submarine cables and offer several solutions how these issues may be addressed.

Consequently, Chapter VII is dedicated to deficiencies of the current regime classified and analyzed as a system to give a comprehensive understanding of the situation. It might be emphasized that extremes are found in the context, implementation, control, and other dimensions. Therefore, Chapter VIII seeks to clarify the most appropriate method how these deficiencies might be addressed examining the formal and informal procedures where an informal procedure of adequate interpretation is considered as most effective measure. Finally, Chapter IX concludes the research and introduces solutions to improve submarine cables legal regime. First, it focuses on substantive changes and follows with institutional arrangements.

The legal regime of submarine cables as the regime governing global public interest deserves constant and progressive development. Due to several deficiencies preventing it from being a comprehensive legal regime an examination of such deficiencies and search for appropriate solutions to diminish them appears to be relevant and appropriate mean in change and improvement of the current legal regime.

226

CHAPTER VII DEFICIENCIES IN THE LEGAL REGIME OF SUBMARINE CABLES

Previous chapters examine the legal regime of submarine cables as a complex and multi-level system of norms. Despite a variety of provisions, the present legal regime contains deficiencies resulting from a hybrid nature of submarine cables and from uncoordinated regulation by international agreements, domestic legislation, and private law.

This chapter aims to expound legal problems currently existing in submarine cables legal regime. The most important include normative deficiencies and deficiencies of content; improper interpretation and implementation of international law in domestic legislation of coastal states; and deficiencies relating to fulfillment or control of fulfillment of legal norms.

A) NORMATIVE DEFICIENCIES AND DEFICIENCIES OF CONTENT Two types of deficiencies are considered in this section. First, normative deficiencies resulting from lack of initial data. In particular, lack of basic definitions required for successful development of legal regulation. Second, deficiencies of legal content comprising lack of rules required to govern submarine cables nowadays.

1. Lack of basic definitions

This sub-section addresses the absence of essential legal definitions in the legal regime of submarine cables. In particular, the definition of a “submarine cable” and several other key notions. a. Definition of a submarine cable

227

The principal notion of a “submarine cable” lacks definition in international law as it was comprehensively analysed in chapter I. Absence of this definition affects the entire legal regime provided that the object of regulation is not clearly defined. Therefore, the scope of regulation may vary depending on broad or narrow consideration of the definition.

Most lawmakers are reluctant to frame definitions of fundamental legal concepts1 explaining it by concern to give inadequately narrow or excessively broad definition. In both cases, definitions appear to be impractical given that a wide scope of issues remains beyond the scope or, on the opposite, includes an extended framework of issues covered by a definition. In the case of submarine cables, it appears that a functional definition could be formulated. First, provided that submarine cables are concrete material objects and do not include any extent of abstract or legal fiction. Second, due to the nature of submarine cables that would not significantly change over years. Discovery of exceptionally new types of submarine cables or installation technologies would not change the governing structure in an instant. Furthermore, presumably submarine cables would remain to be laid underwater, in the same international maritime areas. Therefore, law of the sea would only benefit from a carefully elaborated definition of a submarine cable serving in a long-term perspective such as the tentative definition proposed in chapter I. b. Definitions of other essential notions

Additional definitions of practical use may also contribute to the development of submarine cables legal regime if properly formulated and introduced to international practice.

1) Definition of due publicity

One of the key definitions not addressed by international law is the definition of “due publicity” in relation to submarine cables. The

1 G. Wille, “Legal Definitions”, South African Law Journal 61-36, 1944, pp. 36-39, p. 36. 228

UNCLOS prescribes that coastal states laws and regulations should be duly published and available for all other states2. It is not specified what constitutes “due publicity” although the idea appears to be clear, to make such laws and regulations available for all ships navigating in territorial sea including foreign ships. In submarine cables industry foreign ships are vastly involved and presumably coastal states laws and regulations should be translated into English considered as the language of international communications. However, it does not appear to be a common practice. Some national laws of states are not publicly available, not translated into English, or formulated ambiguously that complicates their understanding for foreign actors and could lead to improper application. For instance, only several basic laws of the Russian Federation are translated into English3. These translations are unofficial and not fully reliable. General objective might be taken from such texts. However, the exact wording requires additional expertise. Official translations issued by competent authorities often do not exist. An explicit notice of obligatory translation into English of domestic laws concerning submarine cables in the context of “due publicity” would facilitate the development of national legislation and its implementation.

2) Definition of due notice obligation

Article 51 (2) of the UNCLOS provides that a due notice shall be given to an archipelagic state concerning maintenance and replacement of cables laid in its archipelagic waters. This rule relates only to already existing cables. It does not refer to new cables and cables making a landfall, meaning those coming ashore and having a landing station on the territory of the archipelagic state. The provision implies that maintenance or replacement operations with such cables do not require permission from archipelagic states. Giving a notice informing the archipelagic state about the intention to conduct maintenance or replacement operations by the cable

2 UNCLOS, Article 21 (3). 3 For instance, Federal Law On the continental shelf…, op.cit.; Federal law On Exclusive Economic Zone…, op.cit. 229 owner shall be sufficient. However, the “due notice” obligation is not clarified by the UNCLOS. In accordance with the principle of good faith and considering that cables should be maintained and repaired promptly, several days’ notice should be considered as a reasonable term. It is worth noting that cables making landfall are excluded from this rule presumably given that reaching a landing station also requires entering internal waters of the archipelagic state. Internal waters are subject to stricter legal regime entirely governed by national legislation of an archipelagic state. Thus, submarine cables passing through maritime zones of archipelagic state without having landing points can be maintained promptly. However, cables landing in the archipelagic state are excluded from this rule, and the process of starting maintenance operations might be unreasonably delayed.

Despite this obligation of the UNCLOS, not all coastal states adopted legislation on this matter and those states that approached the issue require notice and a prior authorization from a coastal state. Indonesia, for instance, in addition to authorization requirement also specified in its national legislation that matters of maintenance and repair of existing submarine cables not making landfall are subject to bilateral agreement between a coastal state and the state that laid this submarine cable before4. The mechanism of actions in the case of urgent cable repairs in the absence of such bilateral agreement between states is not entirely clear. The process of negotiating entrance of a cable ship to coastal state’s maritime zones and course of repairs is time-consuming. Prior authorizations required by coastal states appear to be inconsistent with the UNCLOS provided that due notice should be sufficient following the wording of the convention.

3) Definition of a cable owner

International law requires states to establish liability attributed to cable owners for damage to another cable caused during the

4 R. Churchill, A. Lowe, The law of the sea, op.cit., p. 127. 230 construction or repair processes5. In this case cable owner must bear all costs of repair. However, it is not always a cable owner causing damage to cables. The definition of a cable owner should be interpreted extensively and include more actors involved in the installation process. According to standard provisions of cable laying and maintenance contracts, cable system itself is installed by “contractor”, a company engaged in performing services that is not the owner of a cable. The right to the cable system is passing to the cable owner after completion of works. However, damage could happen in the process of installation of a submarine cable system on the seabed and not only during further ownership. Therefore, it appears that the term “owner” should be interpreted broadly and that would be beneficial to change the UNCLOS approach to this issue.

4) Definitions of reasonable precautionary measures, beforehand, sacrificed

According to Article 115 the indemnification for sacrificed equipment by the master of a ship is subject to a condition that all precautionary measures are respected and only in the case if relevant measures are adopted in domestic law. If a cable ship came into contact with a cable negligently, provisions of this article do not apply6. Cases when it is necessary to sacrifice the anchor after taking all precautionary measures are not specified by international law. If avoiding a contact with cable was not possible, precautionary measures may possibly include reasonable measures to save ship or crew’s lives provided that general principles of the law of the sea are taken into consideration. In other cases sacrifice does not appear to be reasonable since vessel’s crew should be aware of cable location sites following prior consultations with local authorities or publicly available nautical charts where cables are marked. There might be situations when cables change their position due to currents, landslides, or turbidity and real coordinates do not match with those reflected on nautical charts. In the circumstances of lack of general

5 UNCLOS, Article 114. 6 A. Proelss, United Nations Convention on the Law of the Sea…, op.cit., p. 790. 231 guidance in international law details and limits of the notions “reasonable precautionary measures”, or “beforehand”, or “sacrificed” would be elaborated in domestic courts between private parties during the dispute. It appears that international law leaves several important issues for the development in national legal systems within judiciary or legislative branches. However, that would be advantageous to define these notions on the level of international law.

2. Lack of provisions

The present sub-section addresses issues not covered by international law. However, they might be considered beneficial for the development of the legal regime of submarine cables. First, failure to address private companies as main subjects participating in cable installation. Second, the absence of consideration of submarine cables as an infrastructure. Third, failure to address submarine cables in overlapping zones. a. Failure to address companies as main subjects participating in cable installation

Submarine cables issues involve a variety of public and private actors as a consequence of being subject to the hybrid regime as it was analyzed in chapter II. However, the modern legal regime does not adequately reflect this complex structure and addresses only traditional subjects of international law: states and intergovernmental international organizations. The UNCLOS grants the right to lay submarine cables to states despite performed by private parties in practice7.

Provisions of the UNCLOS granting the right to lay submarine cables to states do not reflect the situation nowadays. They should be interpreted broadly and include states together with private companies as final addresses since submarine cables are mostly laid

7 UNCLOS, Articles 58, 79, 87, 112, 297. 232 and owned by them8. Thus, in the notion of “states” all other actors exercising activities relating to submarine cables should be included as confirmed by the descending opinion of Judge Paik where he underlined that private entities are:

“ultimate regulatory targets <…> as they are main actors engaging in various activities in the foreign EEZ”9.

Based on this, some authors suggest that cable companies may assume that the UNCLOS obligations apply to them directly through the term “states” that should have a broader meaning in this context10. It is argued that rights to lay, maintain and repair submarine cables prescribed by the UNCLOS should be attributed to cable companies. Possibly private actors may implement some obligations of the UNCLOS directly. For instance, to have a due regard to other activities in the sea. However, it appears to be an excessive statement. Private actors are not equal to states and thus cannot be addressed “through” the term of states. Companies are private actors having influence on the international legal order that gradually grows in the last years. Their role is crucial in developing modern submarine cables regime and shall be recognized and supported. Thus, in the circumstances when several actors of different legal nature participate in the activity all of them should occupy appropriate place in international law. b. Failure to consider submarine cables as an infrastructure

Submarine cables transmit telecommunications ensuring quick transfer of data. The development of information technologies (primarily the Internet) could not have been possible without proper conditions that facilitated fast expansion of the Internet becoming a

8 A. Proelss, United Nations Convention on the Law of the Sea…, op.cit., p. 781; M. Nordquist, S. Nandan, S. Rosenne (eds.), United Nations Convention on the Law of the Sea…, vol. III, op. cit., p. 264. 9 Judge Paik’s Separate Opinion to the SRFC Advisory opinion on Case No. 21, paragraph 14, available at the ITLOS website at https://www.itlos.org/fileadmin/itlos/documents/cases/case_no.21/advisory_op inion_published/2015_21_SO_Paik-E.pdf, last visited 01/09/2020. 10 Y. Van Logchem, “Submarine Telecommunications Cables…”, op.cit., p. 117. 233 prerequisite for the connectedness of international community11. Thus, the global network of submarine cables as an infrastructure serves as a unifying force and makes communications global. The infrastructure plays not less important role than the good or service provided by it.

1) Inattention to security of submarine cables

The issue of concern within international community in relation to submarine cables as an infrastructure comes to threats from terrorist attacks. Cables are available on open maps and could become targets for terrorists. Terrorism is a relatively frequent event in the sea. The main focus of terrorist attacks in the sea are ships, port facilities, and onshore installations12. However, it is probable that submarine cables may also become an object of terrorist attacks one day. Especially taking into consideration the unprecedented number of already reported cases.13

There is also a concern in the international community regarding the threat of cyber terrorism when cable management centres, security data and software might be hacked and stolen. Although it does not relate to submarine cables as a physical infrastructure, it would certainly have an impact on the entire system should cyber-attack occur. Cyber terrorists can hack and remotely control vessels, interrupt navigation systems, and create so-called “ghost vessels” taken for real vessels by other ships14. It could provoke collisions and consequently cause damage to cable infrastructure. This situation is currently not regulated by international law.

11 L. Main, “The global information infrastructure…”, op.cit., p. 95. 12 V. Bezkorovainiy, S. Sokolyuk, “Maritime terrorism and weapons of mass destruction at sea” in J. Kraska, R. Pedrozo, International Maritime Security Law, Leiden: Martinus Nijhoff Publishers, 2013, p. 739. 13 D. Burnett, “Note to Navy…”, op.cit., p. 67. 14 R. Hamza, “Maritime terrorism and the illicit trafficking in arms” in D. Attard, The IMLI Manual on International Maritime Law, vol. III, Marine Environmental Law and Maritime Security Law, Oxford: Oxford University Press, 2016, p. 422. 234

2) Unregulated status of out-of-service cables

The next concern is the absence of requirement in international law to remove out-of-service submarine cables from the seabed when their life term is over. Owners of submarine cables that are not removed from the seabed after their use may not be considered as causing dumping to the marine environment or breaching any other rule of international law.

Out-of-service cables removal from the seabed15 is essential in terms of respecting rights of other seabed users. Abandoned submarine cables cause inconveniences to other seabed activities provided that due consideration to non-existent object shall be given while conducting other activities in the vicinity of out-of-service cables. Furthermore, such cables occupy a seabed space that might be used to lay a new cable. They remain to be marked on nautical charts and owners of out-of-service cables still maintain their obligations under international law. For instance, concerning the indemnification from the cable owner in case of sacrificing the anchor for avoiding damage to a cable as established under the UNCLOS16.

Therefore, removal of out-of-service cables beyond territorial sea primarily remains to be a decision of cable owners themselves17 since they are not obliged to perform it by international law. In some states’ domestic legislation there is also no obligation to remove out- of-service submarine cables. For instance, Canada would be one of such examples18.

15 When considering the removal of out-of-service cable from the seabed the variety of factors shall be considered. For instance, any potential effect on the safety of surface navigation, possible future effects on the marine environment, potential socio-economic benefits from recovering the cables, et cetera. See Management of Redundant and Out-of-Service Cables, International Cable Protection Committee, ICPC Recommendation No. 1, Issue: 13, 2016, available at http://www.sargassoseacommission.org/storage/documents/Recommendation_0 1_Iss_12B.pdf, last visited 01/09/2020. 16 UNCLOS, Article 115. 17 Management of Redundant and Out-of-Service Cables…, op. cit. 18 S. Coffen-Smout, G. Herbert, “Submarine cables: a challenge…”, op. cit., p. 445. 235 c. Failure to address submarine cables in overlapping zones

Overlapping exclusive economic zones of several states or “grey areas” not belonging to maritime areas of any state and zones under pending disputes constitute another problem unresolved in international law. The UNCLOS does not establish the procedure if a planned cable route passes through such territory. In this case, it appears that states claiming disputed territories should solve this issue jointly through international agreement and avoid creating obstacles and legal uncertainty for the cable industry. Such issue already appeared in international law. In 2009, several submarine cables were damaged by anchors in a zone where maritime boundaries between Malaysia, Indonesia, and Singapore were not defined. Thus, initially it was unclear under which national law the responsibility for damage should be established. In this particular case, states jointly applied to the IMO to resolve the dispute. In response to their request, IMO issued a Circular specifying that Singapore, Malaysia, and Indonesia would take all necessary actions to combat ships anchored in unsettled area, including sending reports to the violating vessel’s flag state and providing information to submarine cables owners with the aim to initiate appropriate dispute resolution procedures19. However, if there is no agreement between states cable companies are forced to solve this issue independently and establish contact with several states simultaneously or develop an alternative route avoiding uncertain zones.

B) IMPROPER IMPLEMENTATION OF INTERNATIONAL LAW IN DOMESTIC LEGISLATION

Implementation of international law in national legislation of coastal states is an essential issue indicating applicability of international agreements. The UNCLOS and other conventions establish general framework to be developed by states. In some matters they provide more detailed rules, in other matters coastal states are expected to expand the regulation themselves. States may meet minimum

19 IMO, Circular SN.1/Circ.282 on the Prohibition of Anchoring…, op. cit. 236 requirements and go beyond conventional framework establishing an advanced regime. For instance, in the territorial sea as maritime area under the jurisdiction of a coastal state. Despite the general norm of the UNCLOS, the main regulation of the protection of submarine cables in relation to innocent passage is assigned to domestic law. Coastal states may adopt laws and regulations on the variety of issues relating to innocent passage in their territorial sea20. Consequently, the effectiveness of the protection of submarine cables within a twelve-mile territorial sea zone depends on the level of development of national law in a particular state. However, it appears that not every state possesses developed and elaborated legal regime and some states do not meet even minimum requirements of international agreements as examined in chapter VI.

Interpretation and further implementation of international law provisions are often unilateral. States tend to claim much, interpret provisions of the UNCLOS and other international agreements in their favor, and give them as broader meaning as possible21. By such expansion, the rights of other states and seabed users may be affected22.

In general, there are two scenarios of improper implementation in domestic legal orders. First, overregulation and extra requirements imposed by states that are not in accordance with international law. Second, the opposite situation when states fail to address specific issues and lack essential provisions.

1. Overregulation

The overregulation is considered in this section as excessive requirements imposed by states to regulate submarine cables. Generally, such actions do not appear to be necessary under international law. The idea of implementation of the international

20 UNCLOS, Article 21. 21 D. Burnett, “Impacts on international submarine cables…”, op.cit., p. 156. 22 D. Rothwell, T. Stephens, The international law of the sea, second edition, Oxford and Portland, Oregon: Hart Publishing, 2016, p. 27. 237 legal regime in domestic legal order is to extend, make it more detailed and consistent without creating additional obstacles for the cable industry23.

The areas where overregulation takes place include delineation of submarine cables routes, conditions for carrying out cable route surveys outside a coastal state’s territorial sea, overindulgence of sovereignty concerning laying and repair of cables, requirements to marine scientific research and possible misuse of the concept of reasonable measures. Concrete examples would be licensing procedures, ecological expertise or environmental impact assessment required by states, the obligation to apply for permissions, numerous authorizations from governmental authorities, et cetera. a. Direct contradiction to international law

According to Article 79, paragraph 3 of the UNCLOS, the delineation of the course for laying a submarine cable on the continental shelf is not subject to the consent of a coastal state given that only pipelines are mentioned in this context. This issue is defined by the UNCLOS clearly as well as supported by the opinion of legal scholars24. However, it was not always the case. During the negotiations on the text of this provision, China suggested to make delineation of the course of submarine cables subject to a coastal state’s consent as it was clearly expressed in the Chinese proposal25. Danish representatives argued that due to a great difference in cables and pipelines laying techniques only pipelines should be subject to

23 R. Beckman, T. Davenport, Workshop On Submarine Cables And Law Of The Sea (Workshop Report), Centre for International Law, National University of Singapore, 2009, pp. 2-74, p. 16, available at https://cil.nus.edu.sg/wp- content/uploads/2009/10/Workshop-Report-29-Jan-2010.pdf, last visited 01/09/2020. 24 UNCLOS, Article 79 (3). This point of view was also reflected in the following works: R. Churchill, A. Lowe, The Law of the Sea, op.cit., p. 174; M. Nordquist, S. Nandan, S. Rosenne, (eds.), The United Nations Convention on the Law of the Sea…, vol. II, op. cit., p. 915, paragraph 79.8 (c); A. Proelss, United Nations Convention on the Law of the Sea…, op.cit., p. 626. 25 A/AC.138/SC.II/L.34, section 3, paragraph (4), reproduced in III SBC Report 1973, at 71, 74 (China). 238 the consent of a coastal state26. Alternative views on this issue were also expressed. For instance, Nicaragua proposed to exempt submarine cables from all restrictions submitting that they “shall be subject to no restrictions other than those provided for in this Convention and in treaties concluded subsequently thereto.”27

In practice, cable companies laying a cable are advised not to solve this issue independently and to consult with competent coastal state’s authorities provided that it might be in controversy with domestic law of the state where submarine cable is planned to be laid. For instance, in China, the Regulations of Permission on Delineation of Course for Laying, Maintaining, or Modifying Submarine Cables or Pipelines on the Continental Shelf of the Republic of China are in force28. They explicitly require permission of the course delineation for laying submarine cables to be obtained on China’s territorial sea and continental shelf29. The competent authority responsible for the review of approval of the application in the case of China is the Ministry of the Interior30. The Russian Federation and Uruguay claim regulating the route of a submarine cable across their continental shelves. The same requirements exist in Bulgaria, Guyana, India, Malaysia, Mauritius, Myanmar, Pakistan, and several other states31.

In continuation to the delineation permissions, as noted by Professor Robert Beckman, coastal states also do not have the right to adopt laws and regulations on conditions for carrying out cable route surveys for laying a cable outside their territorial sea. Nevertheless,

26 Denmark ([1977]), mimeo.), Article 67 (RSNT II). Reproduced in IV Platzöder 470. 27 M. Nordquist, S. Nandan, S. Rosenne, (eds.), The United Nations Convention on the Law of the Sea…vol. II, op. cit., p. 911. 28 Regulations of Permission on Delineation of Course for Laying…, op.cit. 29 Ibid, Articles 4 and 13. 30 Ibid, Article 2. 31 R. Churchill, “The Impact of State Practice on the Jurisdictional Framework Contained in the LOS Convention” in A. Elferink (eds.), Stability and change in the law of the sea: the role of the LOS Convention, Leiden/Boston: Martinus Nijhoff Publishers, 2005, pp. 91–144, p. 140. 239 this provision of the UNCLOS is frequently violated32. States require the coordination of a cable route in the territorial sea and in the exclusive economic zone with their competent authorities. For instance, India and the Russian Federation33 as well as China in the above-mentioned Regulations34 in relation to the continental shelf.

Some states establish cable laying and repair conditions that are not considered as the exercise of the sovereignty of the coastal state. For instance, Malta imposed a fee on cables laid on the continental shelf beyond its territorial sea calculated on per kilometer basis.35 This act directly contradicts the UNCLOS given that it goes beyond the coastal state’s rights on the continental shelf. In 2008 a Spanish court found no reason for charges imposed by the Ministry of Environment of Spain on submarine cables laid outside the Spanish territorial sea36.

The same applies to permissions required by states to lay or repair damaged submarine cables in the exclusive economic zone. Some states require obtaining permits, handling payments for cable repairs outside their territorial sea or receiving permission for repair operations37 in maritime zones where they do not have sovereign rights. For instance, the United States previously required an

32 R. Beckman, “Submarine Cables…”, op. cit., p. 9. 33 T. Davenport, “Submarine Cables: Problems in Law…”, op.cit., p. 19. 34 Regulations of Permission on Delineation of Course for Laying…, op.cit., Articles 4 and 5. 35 D. Burnett, “Impacts on international submarine cables…”, op.cit., p. 166. 36 Telefónica de España S.A. v. Ministry of the Environment, Supreme Court (Contentious-Administrative Division, 5th Chamber) Ruling JUR 2008/211246, 16 of June 2008. 37 For instance, permission is required in the Russian Federation under the Government Regulation of the Russian Federation “On adoption of Provision of construction and exploitation of connection lines during the crossing of the state border of the Russian Federation on the border area, internal waters and territorial sea of the Russian Federation” (Ob utverzdenyi polozhenia o stroitelstve y ekspluatatsii linyi svyazi pri peresechenii gosudrstvennoy granitsy Rossiyskoi Federatsii na prihranichnoy territorii, vo vnutrennyh morskih vodah y v territorialnom more Rossiiskoy Federatsii”), № 610, adopted 9 of November 2004, Collection of Legislation of the Russian Federation №46 (part 2), 2004, Art. 4531. 240 authorization to lay submarine cables in its exclusive economic zone, beyond the area of twelve nautical miles and where coastal states have no right to regulate this issue. The dispute was solved by negotiations between the United States and French authorities since the cable ship involved in a project was flying the French flag38. Authorization from the Ministry of National Defense for cables repair is also required in South Korea39. b. Creating excessive requirements

Many states require prior authorization for cable installation that creates difficulties for submarine cable industry. One of the most demonstrative examples would be the Republic of Maldives. It requires prior authorization to enter its exclusive economic zone for any foreign vessel including cable ships40.

In most cases, a confirmation that marine scientific research is properly conducted and there is no environmental damage from the planned submarine cable installation activities is required. However, submarine cables produce limited and local environmental damage as widely recognized in the scientific community41. The precautionary principle42 prescribing not to postpone cost-effective measures to prevent environmental degradation in case of lack of full scientific certainty does not appear to be applicable in this case. There is enough practice on laying submarine cables worldwide confirming that cables have a benign effect on the marine environment. Therefore, there is no need in additional controlling measures. Such

38 D. Burnett, “Impacts on international submarine cables…”, op.cit., p. 170. 39 Submarine Cable Information Sharing Project: Legislative Practices and Points of Contact, op.cit., p. 11. 40 Maritime Zone of Maldives, Act №6/96, Maldives, Article 14, available at http://www.vertic.org/media/National%20Legislation/Maldives/MV_Maritime_ Zones_Act.pdf, last visited 01/09/2020. 41 K. Ekwere, “Submarine Cables and the Marine Environment…”, op.cit., p. 154. 42 Principle 15 of the Rio Declaration on Environment and Development, concluded 13 of June 1992, UN Doc. A/CONF.151/26 (vol. I); 31 ILM 874 (1992). 241 actions delay the process, costs of the project increase and it becomes less profitable for investors while for states the additional confirmation does not appear to reveal any new data. While the UNCLOS in general aims to have a balanced approach to interests of different actors, this approach must be maintained in relation to all provisions and in this case in particular. c. Misinterpretation of international law provisions

Article 79 (2) of the UNCLOS would be the most illustrative example of misinterpretation of international law by coastal states. It provides the right of a coastal state to take reasonable measures to explore the continental shelf, develop its natural resources and prevent, reduce, and control pollution from pipelines. However, coastal states cannot prevent laying or maintenance of submarine cables or pipelines. An imprecise meaning of the wording “reasonable measures” was formulated in the text of the 1958 Convention on the Continental Shelf and remains vague nowadays. It is not entirely clear what actions coastal states can perform following such reasonable measures and how these measures should be evaluated.

Rights of the coastal state and reasonable measures it may take to develop resources of the continental shelf are based on domestic legislation, declarations, statements, and national policies for the development of natural resources of such state. In other words, in those documents, national strategies, and policies where the state unilaterally decided how to develop its natural resources freely interpreting this notion. In addition, political context should also be taken into consideration. Resources of the continental shelf are precious assets and states are reluctant in agreeing to suspend the development of natural resources in the area where a submarine cable is planned. Even if a submarine cable is laid to the territory of the coastal state providing it with telecommunications, there is a concern that in this case, the natural resource aspect would take precedence over the social issue.

242

Uncertainty relating to the notion of “reasonable measures” was partially reduced by Article 79 (2) of the UNCLOS in contrast to the provision contained in the 1958 Convention on the Continental Shelf. The UNCLOS provides that measures of the coastal state aimed at reducing or preventing pollution from submarine cables (since the international community has recognized relatively low impact of cables to the marine environment and innoxious consequences of accidents comparing with pipelines) will not be considered reasonable. This might be considered as a progress of the UNCLOS in comparison with the 1958 Convention on the Continental Shelf. However, the substantial scope of Article 79 (2) may be interpreted broadly that provides a great level of discretion for coastal states.

2. Absence of regulation

The cases provided above illustrate the situation when coastal states go beyond the limits of international law and overregulate specific issues. However, there is also an opposite situation when some matters are left unregulated by domestic law. Most important matters where the absence of regulation is visible include inadequate remedies imposed by states for damage to cables, lack of addressing laying and repairing processes, the complexity of an application process, and theft of submarine cables by offenders. a. Absence of proper governance of submarine cable affairs

Oftentimes issues of laying a new cable belong to the competence of several authorities on national level that further complicates the process of obtaining permissions. Practically nowhere except for Australia, Singapore, and China, a head office exists that is entirely engaged in this matter. This imposes restrictions on cable installation and timely repair operations provided that compliance with formal procedures significantly increases time and any delays can entail essential problems.

For instance, when in 2013 submarine cable was damaged near the coast of Indonesia, it took nearly four months to repair it due to

243 administrative delays of Indonesian authorities43. Such delays increase the total cost of the breakdown since every day of cable inactivity costs significant sums for its owner. As noted by the retired captain from the United States fleet with a notable navigational experience, Lawrence Hagardon, in his statement to the Department of Land Protection and Land Management of the state of Oregon44, the cost of one working day of a cable ship engaged in repair process can exceed one hundred thousand dollars per day. Given that the statement was made in 1999, it can be reasonably assumed that by present day the cost of one day of repair remarkably increased. The average cost of a single repair, including standing and running costs, counts between one million to three million-plus of the United States dollars45. b. Absence of qualifying the act of damage to submarine cables as a punishable offence

Article 113 of the UNCLOS formulates in detail that every state shall adopt laws and regulations to provide that the break or injury of a submarine cable beneath the high seas committed willfully or negligently shall be considered as a punishable offense. The UNCLOS attributes these criminal acts to ships or individuals under the coastal state’s jurisdiction46. Despite this obligation some states have not adopted such rules and even if a liability was established in domestic leggislation it does not appear to be proportional to the

43 B. Grubb, “Australian internet connections slowed down by submarine cable fault”, The Sydney Morning Herald №12, 2014, available at https://www.smh.com.au/technology/australian-internet-connections-slowed- down-by-submarine-cable-fault-20141202-11yc8m.html, last visited 01/09/2020. 44 L. Hagadorn, Statement before the Division of State Lands and the Department of Land Conservation and of the State Oregon regarding proposed administrative rules for granting easements for fibre optic and other cables on state-owned submerged and submersible land within the territorial sea and tidally influenced waters, United States, 1999, pp. 1-6, p. 2, available at http://sdb0947dd74429a3f.jimcontent.com/download/version/1231428094/mod ule/499773613/name/Doc_1.2.1.1.1.1.-7.pdf, last visited 01/09/2020. 45 D. Burnett, “Recovery of Cable Repair Ship…”, op. cit., p. 108. 46 M. Nordquist, S. Nandan, S. Rosenne (eds.), United Nations Convention on the Law of the Sea… vol. III, op. cit., p. 269. 244 consequences and costs of damage. The absence of requirement for liabilities to be severe and correspond to the consequences of cable damage does not always motivate states to enact appropriate measures. Thailand would be such an example47. In the United States, for instance, the Federal Statute for Submarine Cable Protection imposes a maximum penalty of only five thousand dollars for willful injury to cables48. It does not correlate primarily with the consequences of submarine cables breaks, and secondly, with the costs borne by owners of submarine cables for their restoration and repair. It is worth noting that not all cases of cable breaks should result in liability. As it was underlined by the ILC in its 1956 Commentary, “culpable negligence” is not applicable in cases when break or injury was caused to unmarked or not well enough marked cables49. c. Absence of norms qualifying theft of submarine cables as an international crime

Lack of norms relating to possible theft of submarine cables also constitutes a deficiency of submarine cables legal regime. The accident with Vietnamese citizens who stole submarine cables from the seabed addressed in chapter IV demonstrated that offenders were never brought to justice due to the absence of either national or international norms that would impose liability for such crime. This case once again underscores a gap in the legal regulation of the protection of submarine cables50 and underlines that terrorist and pirate attacks on cables laid outside the territorial sea are improbable

47 Submarine Cable Information Sharing Project: Legislative Practices and Points of Contact, op.cit., p. 11. 48 Submarine Cable Act, U.S. Code, Title 47, Chapter 2, paragraph 21, adopted 18 of February 1888 (as amended), 50th United States Congress, available at https://www.law.cornell.edu/uscode/text/47/21, last visited 01/09/2020. 49 M. Nordquist, S. Nandan, S. Rosenne (eds.), United Nations Convention on the Law of the Sea…vol. III, op. cit., p. 269. 50 M. Matis, The Protection of Undersea Cables…, op. cit., p. 16. 245 to be considered crimes under international law and most national laws of coastal states51.

Generally, the lack of regulation consists of states’ non-adaptation of national legislation to provisions of international law and incorrect appplication of such rules by some states52. d. Absence of transparency in cable laying and repairing process

Coordination of laying and repairing processes of damaged submarine cables does not often appear to be transparent. It includes such components as notice to a coastal state, permission for a cable ship to enter the territorial sea and start operations, cable ship staff immigration requirements, et cetera. It often remains ambiguous and lengthy that means states do not provide the effective mechanism of cable installation in their maritime zones. For instance, in India the process of obtaining permission to repair a submarine cable may last up to thirty-two days that increases costs of cable companies due to the downtime of the damaged submarine cable53. It also affects stable functioning of telecommunications facilities and submarine cables as a global infrastructure.

Oftentimes application procedures appear to be non-transparent and not entirely clear to follow. Only a small number of states allow sending the application to install submarine cables online. Australia and Singapore54 are leaders demonstrating positive experience concerning this issue. In other cases, applicants must provide

51 D. Burnett, “Note to Navy…”, op.cit., p. 68. 52 M. Green, S. Drew, L. Carter, D. Burnett, “Submarine Cable Network Security”, presentation to APEC, International Cable Protection Committee, Information Sharing Workshop, 13 of April 2009, pp. 1-49, p. 44, available at https://www.google.ru/url?sa=t&rct=j&q=&esrc=s&source=web&cd=2&ved=0 ahUKEwjy8cHfj9LXAhWB6RQKHUyBDQIQFggvMAE&url=https%3A%2F% 2Fwww.iscpc.org%2Fdocuments%2F%3Fid%3D137&usg=AOvVaw1X3yEKbO mWvIP6pFCVu3Pp, last visited 01/09/2020. 53 Ibid, p. 44. 54 T. Davenport, “Submarine Cables: Problems in Law…”, p. 9. 246 documents in person, either by postal service or through diplomatic channels that requires more time.

States often do not possess rules to prevent or minimize disturbance to operations of cable ships engaged in laying or repairing cables. The process remains indeterminate for third parties intervening in cable processes. As previously stated, the 1884 Convention obliged all vessels to keep a certain distance from the cable ship so as to not interfere with its operations. In modern international law, no concrete distance is provided and fishing vessels in some cases purposely interfere to the operation of cable ships in fishing zones, pursuing their interests, and seeking to obtain financial benefits from such intervention. Lack of norms results in leaving private actors without protection and sometimes finishes in court. For instance, in 2009 the French court considered a case where submarine cable owners received compensation from fishermen intensively distracting cable ship from its repairing operations55.

3. Abundance of regulatory instruments

Chapters IV-VI comprehensively addressed several levels of legal regulation of submarine cables existing nowadays. Each level has its own structure of instruments that are further divided into constituent parts. The system of sources is dispersed, complicated and includes a high level of fragmentation. Therefore, it appears to be difficult to harmoniously apply the legal regime of submarine cables in practice. Moreover, a diversity of norms appearing within such multilevel system has more probability of intersection, collision and contradiction.

On the international law level, the system of instruments is generally well-structured. The UNCLOS is the main international agreement followed by other international conventions and resolutions of international organizations. However, on domestic level legislation there is less uniformity in implementation. Each state decides how cables are regulated in its own manner. National laws are of different

55 Case No 06/00229 DG/LM, Tribunal De Grande Instance De Boulogne Sur Mer (1st Chamber), 28 of August 2009. 247 legal force due to a different hierarchical position in domestic legal systems. Some states include provisions on submarine cables to federal56 or state laws57 (main legal sources in terms of supremacy), other keep them on a lower level of resolutions58 or directives59 of governmental authorities generally being more detailed. However, in case of contradiction with instruments of higher legal force, the latter would prevail.

In some cases, there are separate legal acts entirely dedicated to submarine cables60. Alternatively, provisions on submarine cables are included in acts of a general character covering adjacent issues61. This may possibly constitute one of the reasons for diversity in domestic submarine cables legal regimes. Thus, the well-constructed international regime could improve national legislation of states and unify the general level of regulation.

The majority of domestic legal instruments regulating submarine cables were adopted relatively recently (closely before or after 2000) given that the UNCLOS entered into force in 1994. Presumably, states had no sufficient experience in regulating this new area and had no example to follow in the circumstances of the general character of international norms. Therefore, the current legal regime of submarine cables appears to be a kaleidoscope of norms and includes a variety of ways how international law is implemented on national level. These features of the implementation explain inconsistencies existing between states including states possessing highly developed domestic legal regime of submarine cables and other states not sufficiently meeting basic requirements. Thus,

56 See, for instance, Federal Law On the continental shelf…, op.cit., Article 31. 57 See, for instance, Telecommunications Business Law, No. 86, op. cit., Article 141 (1). 58 See, for instance, Resolution under which security areas are established…, op. cit. 59 See, for instance, Directive on Strengthening the Protection of Submarine Cables…, op. cit. 60 See, for instance, Submarine Cables and Pipelines Protection Act, No. 61, op. cit. 61 See, for instance, Code of Postal and Electronic Communications, op.cit. 248 contemporary circumstances do not contribute to balanced and gradually developing legal regime of submarine cables.

C) DEFICIENCIES RELATING TO FULFILLMENT OR CONTROL OF FULFILLMENT OF LEGAL NORMS

The present section aims to underline disadvantages of the legal regime based on deficiencies analyzed in previous sections. As a consequence of normative deficiencies and deficiencies of content as well as of improper interpretation and implementation of international law in domestic legislation the deficiencies relating to fulfillment or control of fulfillment of legal norms appear. In other words, problems in substantial and normative parts of the legal regime result in practical performance and successful application of norms. Three issues are examined within this section: the multiplicity of actors, lack of the unique regulating authority, and collision between norms relating to submarine cables and norms regulating different activities at sea.

1. Lack of unique regulating authority62

The absence of an authority responsible for submarine cables is considered as an important issue on the international law level as well as on the national level of states. Submarine cables have not been assigned a special status, and no international authority has been created to cover submarine-cable-related issues.

To install or repair a submarine cable in another state’s maritime zone, a foreign cable ship, a team of professionals, and required equipment should reach a destination. It requires regulation of immigration, technical, environmental, and other matters. All these activities must be regulated and implemented by states in their domestic legal orders and states are concerned that their interests are

62 Ideas contained in this subsection were also expressed in D. Shvets, “The Legal Regime of Submarine Telecommunications Cables in the Arctic: Present State and Challenges” in Digitalisation and Human Security—A Multi-Disciplinary Approach to Cybersecurity in the European High North, edited by M. Salminen, G. Zojer, and K. Hossain, Cham: Palgrave Macmillan, pp. 175-203.

249 respected. From this perspective, states perform controlling functions. Provided that there is an absence of central authority or any supranational government in this sector, states control cable- related activities themselves. Projects for laying of submarine cables are large-scale projects usually planned to pass through maritime zones of several states. Thus, a cable installer should contend with domestic laws of each state involved. However, national requirements may significantly differ as addressed in chapter VI. It requires more time to cope with each case, may postpone the project in general and make it less attractive for investors.

In the area of submarine cables, the only institution entirely involved in the affair is the ICPC, an extraordinary actor aiming to comprehensively manage submarine cables. It lacks regulative instruments inherent to an international organization. However, the ICPC demonstrated that to a certain extent submarine cables could be regulated beyond the scope of the traditional international organization. Therefore, the experience of the ICPC might possibly be transferred to other levels of regulation. In particular, special regional or local authorities with responsibilities for drafting recommendations, guidelines, or best practices on laying and maintaining submarine cables would be a significant step in the development of submarine cables legal regime.

2. Collision between norms regulating different activities and interests at sea

There are several activities taking place in the same maritime areas where submarine cables are laid. Article 87 mentions the freedom of navigation, freedom of overflight, freedom to construct artificial islands and other installations permitted under international law, freedom of fishing, and freedom of scientific research. With the seemingly vast territory of the World Ocean problems of crossings of submarine cables with other seabed uses appear in practice63.

63 As specified by the J. A. Yturriaga Barberán, an Ambassador from Spain and Deputy-Head of Spanish delegation on negotiations of the adoption of the UNCLOS “the interests of the various sectors involved in the Law of the Sea were not always coincidental and, at times, were in contradiction”. See J. A. Yturriaga 250

When two activities collide and compete with each other, it is not entirely clear which should be given a priority. In the high seas, where states cannot thoroughly control mutual activities, and all the regulation is subject to general limitations under international law, it might provoke incidents nowadays. When a conflict appears between two states, a case-by-case approach and balance of interests involved in a process should be considered and evaluated. A general rule might be formulated as the necessity to determine which activity would be more reasonable in this area at this particular time. However, powerful states might insist on their interests in the high seas even if it appears to be unreasonable to other states64. In some cases, on the opposite, cable owners negotiate an opportunity to lay submarine cable in a particular area and compensate actors performing other activities to transit competitive zone65. a. Fishing

Submarine cables could be damaged due to a variety of factors. First, by natural hazards such as earthquakes, tsunamis, volcanic activity, et cetera. A global warming of the oceans also contributes to a certain extent. Namely, by provoking underwater currents and landslides changing submarine cables location on the seabed. Second, mostly submarine cables are endangered by human-made activities. In concrete, by fishermen and their fishing equipment66. The more fishing technologies develop the greater safety risks to submarine cables arise in practice. Oftentimes damage to submarine cables occurs during fishing activities (approximately 44%) and anchoring (approximately 14,6%)67. In terms of geography, the majority of cable faults occur near the shore at a depth of up to one hundred meters (provided that the vast majority of anchors and fishing nets

Barberán, “Spain at UNCLOS”, Spain and the Law of the Sea: 20 years under LOSC, Spanish Yearbook of International Law, vol. 21, 2017, pp. 163-180, p. 166. 64 R. Churchill, A. Lowe, The law of the sea, op.cit., p. 127. 65 Y. Van Logchem, “Submarine Telecommunications Cables…”, op.cit., p. 109. 66 E. Wagner, “Submarine Cables and Protections…”, op.cit., p. 135. 67 L. Carter, D. Burnett, S. Drew, G. Marle, L. Hagadorn, D. Bartlett-McNeil, and N. Irvine, “Submarine Cables and the Oceans…”, op.cit., p. 45. 251 easily reach this distance) and within the territorial sea of states. In addition, most of the damage originates from insufficient attention to anchor mechanism when the vessel starts moving and catches a cable. In this case, neither vessel’s master nor the crew inspects the anchor for dragging alien objects. In modern international law, the International Convention on Standards of Training, Certification, and Watchkeeping for Seafarers (STCW), 197868 establishes minimum skills and knowledge that master, and crew members should possess. However, they appear to be insufficient to prevent cable ruptures materializing in practice. b. Underwater cultural heritage

A threat to the freedom to lay submarine cables deriving from underwater cultural heritage may appear in the near future. The situation of possible crossings is not clearly regulated in international law. There are no established criteria for managing two activities taking place in the same area. It remains an open question how to regulate the issue when a submarine cable’s route is designed to pass through an underwater cultural heritage site. Possible options may include choosing alternative route, or contacting UNESCO to elaborate the route considering interests of both parties, or negotiating independently. There might be more assumptions since there is no definite regulation in the law of the sea nowadays.

Some researchers already pointed to this problem69. Considering the number of submarine cables laid along the ocean floor and the number of cables planned in different parts of the world, the issue of competitive uses of the seabed to protect the underwater cultural heritage and simultaneously the freedom to lay submarine cables remains unclear. In the United Kingdom, for instance, there are at least two hundred fifteen medieval and an unknown number of Saxon’s and Roman's settlements located along the eastern and

68 Convention on Standards of Training, Certification and Watchkeeping for Seafarers, adopted 7 of July 1978 in London, entered into force 28 of April 1984, IMO publication IMO IС938R: «CPI Books Limited», Reading RG1 8EX. 2011 (1361 UNTS 2). 69 See E. Perez-Alvaro, “Unconsidered Threats…”, op cit., p. 55. 252 southeast coastlines70 where submarine cables can be potentially laid. The Mediterranean, an important geographical area for planning submarine cables routes, counts one hundred fifty sunken cities considered as an underwater cultural heritage71. Water areas of North, Baltic, and Black Seas had previously been dry land. Thousands of prehistoric sites are located there72. The Caribbean waters recently revealed the archeological remains of more than three hundred vessels at the bottom of the sea73. Multiple Spanish shipwrecks rest on the seabed in maritime zones of several states74. Even Arctic waters possess a certain amount of underwater cultural heritage75. It becomes especially relevant in the light of the growing interest to lay submarine cables in the Arctic76.

There are some cases of conducting submarine cable route survey where areas of underwater cultural heritage were discovered along

70 D. Sear, A. Murdock, T. LeBas, P. Baggaley, G. Gubbins, “5883 Dunwich, Suffolk: Mapping and assessing the inundated medieval town”, GeoData Institute, National Oceonography Centre, and others, Final report, 2011, pp. 1-171, available at http://www.dunwich.org.uk/resources/documents/dunwich_12_report.pdf, last visited 01/09/2020. 71 See website of the UNESCO, Section “Submerged structures: Human settlements, caves and wells”, available at http://www.unesco.org/new/en/culture/themes/underwater-cultural- heritage/underwater-cultural-heritage/ruins-caves-and-wells/, last visited 01/09/2020. 72 Ibid, Section “Publications”. 73 See website of Clean Ocean Initiative, Inc., Threads to Underwater Cultural Heritage: Sustainable Submarine Cables, available at http://gis.jp.pr.gov/Externo_Econ/EvaluacionAmbiental/Archeological.pdf, last visited 01/09/2020. 74 J. Carrera, “Protecting Underwater Cultural Heritage”, Spain and the Law of the Sea: 20 years under LOSC, Spanish Yearbook of International Law, vol. 21, 2017, pp. 373-385, p. 373. 75 P. Boyarskiy, “Problems of identification, study and preservation of the cultural and natural heritage of the Russian Arctic in the territory of the Arkhangelsk region” (Problemy vyavleniya, izucheniya y sokhraneniya kulturnogo i prirodnogo naslediya Rossiiskoi Arktiki na territorii Archangelskoi oblasti”), Sovremennaya nauka: Aktyalnye problemy, No. 1-2, 2013, pp. 8-12, p. 8. 76 M. Rylova, D. Shvets, “The International Legal Regime of Submarine Cables: the First Arctic Experience”, Ecological Law No. 1, 2018, pp. 31-37, p. 33. 253 the planned route. For instance, conditions of the seabed were evaluated during the environmental impact assessment of a submarine cable route near the drowned town of Dunwich, the former ancient capital of Saxon England77. Therefore, the influence of submarine cables to underwater cultural heritage is considered as possible threat78.

The problem of competing uses of the seabed between submarine cables and underwater cultural heritage may lead to potential conflicts. It can result in the intention to use the same seabed area by submarine cable owners, international or domestic organizations, and research institutes with the aim to study and preserve this area.

There is no solution proposed for this conflict yet. However, first steps have been taken, and the international community dedicated its attention to this matter. The ICPC is a member of UNESCO79 providing that the ICPC is aware of the state of affairs and accordingly can advise to submarine cables industry. Furthermore, the ICPC and its members including national governments successfully negotiated on the exclusion of submarine cables from the Convention’s on the Protection of the Underwater Cultural Heritage, 2001 requirements on underwater cultural heritage80. There are also some mechanisms proposed by the private sector. For instance, a company Clean Ocean Initiative, Inc. proposes and guarantees its own mechanism to be used in cases of conflicts between submarine cables and underwater cultural heritage. The company is specialized on retrieving submarine cables from the seabed and developed a protocol to follow in the case of

77 M. Kennedy, “Archaeologists map lost medieval Suffolk town of Dunwich under the sea”, The Guardian, May 2013, pp. 1-3, p. 2, available at https://www.theguardian.com/science/2013/may/10/archaeologists-map- suffolk-dunwich-sea, last visited 01/09/2020. 78 R. Frost, “Underwater Cultural Heritage…”, op. cit., p. 27. 79 See website of the ICPC, available at https://www.iscpc.org/documents/?id=1751, last visited 01/09/2020. 80 Ibid, Section “ICPC Achievements”. 254 encountering pieces of underwater cultural heritage on the seabed. The protocol includes the following steps:

“Clean Ocean Initiative Inc. should follow the following protocol when an archeological site is found while recuperating submarine cables;

1) Our marine equipment is capable to detect any anomaly while pulling cables, executing an immediate stop. 2) Coordinates (longitude and latitude) shall be registered immediately at barge nautical log. 3) All evidence of the discovery should be collected (pictures and video). Written report describing the finding should be in detail and clear as possible. 4) Base of conditions of the archeological finding a decision to cut and release the cables shall be made. 5) Clean Ocean will notify all concerning parties and authorities. 6) If requested Clean Ocean will assist on further identification of the archeological finding”81.

The protocol might be used as a template to elaborate more detailed mechanism to solve conflict situations arising on the seabed between submarine cables and protection of the underwater cultural heritage. c. Exploration and exploitation of the seabed resources

For a long time, the problem of correlation between submarine cables and seabed mining was not among the matters widely discussed in the law of the sea. Previously activities of cable companies and contractors in connection with the development of the resources of the Area were not intersecting and pretending to occupy the same territory. However, in the last two decades deep seabed mining activities in the Area have moved from the passive into the active phase.

The UNCLOS provides that based on the contractual relations82 the activities in the Area can be carried out by the Enterprise, states or state enterprises, natural or juridical persons that possess the nationality or are effectively controlled by states, nationals of states,

81 See website of Clean Ocean Initiative, Inc., op. cit. 82 UNCLOS, Article 153. 255 or any group meeting the requirements of the convention83. To date, the ISA negotiated contracts for the exploration of polymetallic nodules, cobalt-rich ferromanganese crusts and polymetallic sulphides with 21 contractors in various parts of the World Ocean84. According to these contracts, applicants obtained exclusive rights on the exploration (and further exploitation) of the resources of the Area, in a particular site provided to them.

Formally, contractors exercising their rights and duties under the contract on the exploration of the seabed resources have no priority over other activities exercised in the high seas. Since exploration and exploitation activities are mainly conducted on the seabed, there are possible interactions with the freedom to lay submarine cables and pipelines. Laying of submarine cables appears to be more connected with the seabed than any other freedom. The same applies to exploration and exploitation of the seabed since mainly activities are attributed to the seabed although some operations take place in the water column and on the surface.

1) On the continental shelf

The freedom to lay submarine cables in the high seas is conducted in accordance with Part VI of the UNCLOS devoted to the continental shelf. Thus, in the high seas submarine cables are laid following the rules of Part VI of the convention devoted to the continental shelf. In Article 79 (2) included into Part VI, an interesting norm concerning the regulation between two adjacent activities on the continental shelf might be distinguished. Namely, laying of submarine cables and exploration and exploitation of seabed resources as follows:

83 UNCLOS, Article 153. 84 As of 01/09/2020. See website of the ISA, section “Contractors”, available at https://www.isa.org.jm/deep-seabed-minerals-contractors, last visited 01/09/2020. 256

“subject to its right to take reasonable measures for the exploration of the continental shelf <…> the coastal State may not impede the laying or maintenance of such cables...”85.

Thus, on the continental shelf, these two activities are regulated by the convention. Due to the wording of the convention there are grounds to suppose that a coastal state has a priority in exercising its rights to explore the continental shelf if it already conducts activities on exploration and exploitation of the resources of the seabed within its continental shelf. Thus, it may impede the project of laying a submarine cable in this zone. In the Area the approach appears to be different. The UNCLOS is based on mutual respect of rights of the contractor exercising the exploration and exploitation of the resources of the Area and the state86 engaged in laying a submarine cable in the same part of the seabed. In this situation, the provisions of the UNCLOS do not grant priority to anyone. Articles 87 and 112 of the convention recognize the right of all states to lay submarine cables along the bottom of the high seas beyond the continental shelf and states shall exercise this freedom “with due regard for the rights under this Convention with respect to activities in the Area” 87.

2) In the International Seabed Area: the “common heritage of mankind”

Exploration and exploitation of seabed resources are regulated by the UNCLOS that considers the Area and its resources as a common heritage of mankind88 and empowers the ISA to act on behalf of mankind89. The ISA negotiates contracts on the exploration and exploitation of natural resources of the Area and reserves sectors

85 UNCLOS, Article 79 (2). 86 UNCLOS, Article 147 (1). 87 UNCLOS, Article 87 (2). 88 UNCLOS, Article 136. 89 UNCLOS, Article 153 (1). 257 dedicated to future exploitation through joint ventures or otherwise90.

When analyzing the matter of priority, the concept of a common heritage of mankind could play its specific role. The Area and its resources were declared as a common heritage of mankind and should be developed for the benefit of the whole mankind. Laying of submarine cables has not received a special status and was not attributed to any of the concepts. Thus, in theory, it could be argued that since the resources of the Area received such a special consideration under the UNCLOS, exploration and exploitation activities could also be evaluated as facilitating the practical implementation of the concept of the common heritage of mankind. Therefore, in the case of a conflict where one or another activity need be given a priority, the first place should be reserved for the exploration and exploitation activities in the Area due to their importance for the mankind.

However, the value of submarine cables to mankind is also an essential issue in the modern world. The “mankind” primarily consisting of individuals, groups of individuals, and societies can already observe and employ technologies provided by submarine cables. In concrete, telecommunications such as the Internet and telephony.

Gradually telecommunications become to be considered as public interest being an important source of connectedness91. Thus, submarine cables and services they offer may to a certain extent compete with the concept of common heritage of mankind in its practical value for people in general and concrete individuals in particular. In the case of intersection between these activities it may not be unanimously resolved that seabed activities should be given a priority due to the interest and benefit of mankind. Submarine

90 Agreement relating to the Implementation of Part XI of the UN Convention on the Law of the Sea, op.cit., Section 2 “The Enterprise”, paragraph 2. 91 P. Khanna, Connectography: mapping the future…, op.cit., p. 25. 258 cables’ contribution to the benefit of mankind is not less significant and appears to be more tangible in present days. Seabed activities to be conducted in the Area are not noticeable for final addressees such as individuals although implemented for the benefit of the whole mankind considering interests of all people of present and future generations92. In contrast, submarine cables already serve for the interests of mankind bringing the profit of telecommunications. Submarine cables “whose purpose is to facilitate human communication, lay on a seabed explicitly outlined for activities that benefit mankind”93. Therefore, seabed activities and laying of submarine cables might be considered as equal activities in terms of their public value.

Several conflicts of submarine cables and seabed activities have already appeared in practice. When exchanging coordinates of the location of submarine cables and parts of the Area where exclusive rights to explore the resources of the seabed are granted, two intersections have been found by the ICPC and the ISA, where submarine cables pass through the areas dedicated for development of the resources of the seabed. First, the cable SAFE laid in 2000, co-owned by France Telecom, Tata Communications, and Telecom CA. It connects Mauritius, South Africa, India, Malaysia, and Reunion, and crosses an area in the Indian Ocean where South Korea received exclusive rights to the exploration of polymetallic sulphides94. Second, the site in the Pacific Ocean reserved for the ISA to develop polymetallic manganese nodules. It is crossed by the HONOTUA submarine cable constructed in 2009 and owned by ORT French Polynesia, connecting Hawaii with French Polynesia95.

92 Y. Tanaka, “Protection of Community Interests in International Law: The Case of the Law of the Sea” in A. von Bogdany, R. Wolfrum, Max Plank Yearbook of United Nations Law, vol. 15, 2011, The Netherlands: Koninklijke Brill N.V., pp. 329-375, p. 399. 93 R. Wopschall, “The Outer Side of Communication…”, op.cit., p. 54. 94 Submarine Cables and Deep Seabed Mining…, Technical Study: No. 14, op. cit., p. 10. 95 Ibid, p. 10. 259

Considering recent activities and position of states within the ISA in relation to the development of the Area, more submarine cables might be discovered on the sites obtained by states for the exploration and exploitation of the seabed. Alternatively, cable companies may take the initiative to lay new cables in such reserved sites. The situation of competing interests of cable companies and contractors practically remains outside the regulation of the UNCLOS. It does not establish measures to prevent or resolve possible disputes and does not provide practical measures to reduce the risk of damage.

The situation of competitive uses of the seabed appears to be controversial. On one hand, costs of submarine cables repair may exceed one million dollars96. On the other hand, owners of exclusive exploration rights (to be followed by exploitation rights in future) may consider laying of a new cable in the scope of their exclusive rights as a violation or infringement of the latter. Interests of contractors or the ISA and interests of cable companies may overlap, and there is a certain need to coordinate them. However, except for the mention of “due regard” that shall be given by two activities in respect to each other the UNCLOS does not specify any additional measures.

3) Consideration of the issue by international law

After the collision of submarine cables and seabed activities had taken place in practice, international law reacted to the matter by considering the situation and proposing some solutions. The obligation of due regard was reviewed by the ICPC and the ISA followed by further institutional cooperation. i. Obligation of due regard

In response to the problem of possible overlapping and interference to each other’s activity by cable companies and entities exploring natural resources of the Area, the ICPC and the ISA organized a

96 Ibid, p. 17. 260 meeting where some representatives of cable companies and contractors were invited. They proceeded from the need to interpret the concept of “due regard”97 contained in the convention. According to the position developed during the meeting, the final document indicates that “due regard” by either of the parties requires direct or indirect notification and further consultations between the cable owner and the contractor concerned.

The exchange of information on the boundaries of seabed sites where contractors are granted exclusive rights and areas where submarine cables are laid would help to prevent overlapping interests, detect crossing sites, and launch the negotiation process. Such information is made publicly available by the ISA98. Regarding the location of submarine cables, this information may also be advantageous to share for the purpose of preventing cable damage. Usually cable owners transmit information about the new cable to national hydrographic authorities that further indicate them on maps and pass this information to seafarers, local fishermen organizations in the vicinity of the cable, and other interested sea users. However, maps indicating the location of submarine cables at a depth of more than two thousand meters and in the high seas are not entirely accurate99. Furthermore, cables are not buried in the deep water in contrast to shallow waters. They are placed on the seabed without any additional fixation. Due to underwater currents, landslides, and storms at sea, the location of submarine cables may change. Thus, a practice of exchanging the latest available data was recommended by the IHO. During the meeting, it was considered useful to contact the IHO with the request to issue a recommendation on producing maps showing the position of cables at the bottom of the contract areas100. ii. Institutional cooperation

97 Ibid, p. 10. 98 See website of the ISA, section “Contractors”/“Maps”, available at https://www.isa.org.jm/maps, last visited 01/09/2020. 99 Submarine Cables and Deep Seabed Mining, op.cit., p. 20. 100 Submarine Cables and Deep Seabed Mining, op.cit., pp. 27-28. 261

A year after this proposal was made, the IHO and the ISA concluded the Cooperation Agreement101. This Agreement includes the development of compatible digital formats that the ISA represents to the IHO to reflect areas reserved by contractors. In the Agreement, the development of mapping strategies aimed at eliminating dangers associated with simultaneous operations of several entities in contract zones is emphasized102. This potentially applies to submarine cables activities and thus, it might be observed that certain work to resolve potential conflicts of interest between entities carrying out different activities in the Area is ongoing. At the same time, specific recommendations for creating maps that consider position of cables at the bottom of the contract areas have not yet been published. Similar cooperation agreement was also concluded between the IHO and the ICPC103. These mutual agreements and memorandums of understanding are designed to facilitate the development of activities in the Area and to prevent possible conflicts. However, until now they only outlined general principles and purposes to be achieved in the Area without proposing concrete solutions.

On the twenty fourth session of the ISA taking place from March until July 2018 Draft Regulations on Exploitation of Mineral Resources in the Area104 were considered. In these Regulations, the approach based on mutual respect of interests of competing uses of

101 Agreement of cooperation between the IHO and the ISA, concluded 14 of July 2016 in Kingston, Jamaica, available at https://www.isa.org.jm/files/documents/EN/Regs/IHO-AoC.pdf, last visited 01/09/2020. 102 Ibid, paragraphs “b” and “g”. 103 Memorandum of Understanding between International Hydrographic Organization and The International Cable Protection Committee, concluded 18 of April 2016, available at https://www.iho.int/mtg_docs/International_Organizations/MOU/IHO_ICPC. pdf, last visited 01/09/2020. 104 Draft Regulations on Exploitation of Mineral Resources in the Area, ISA, Twenty-fourth session of Legal and Technical Commission, part II Kingston, 2–13 of July 2018, Item 10 of the agenda, available at https://www.isa.org.jm/sites/default/files/files/documents/isba24-ltcwp1- en.pdf, last visited 01/09/2020. 262 the seabed taken by the UNCLOS was confirmed. Draft Regulation 13 (d) states that:

“exploitation activities to be carried out with reasonable regard for other activities in the Marine Environment, including, but not limited to <…> the laying of submarine cables…”.

According to these Regulations, contractors should exercise due diligence to ensure that they do not cause damage to submarine cables or pipelines in the Contract Area105. Damage caused to submarine cable during exploration and exploitation activities is considered as an “incident” by the Regulations106. According to the text, the contractor should not proceed or continue exploitation activities if there are reasonable grounds to suppose that it would cause or contribute to an incident, meaning damage to submarine cables107. In this case, in contrast to the situation addressed by Article 79 (2) of the UNCLOS providing that submarine cables can be impeded from being laid if the exploration and exploitation activities are already taking place at the same site, the Regulations anticipate the opposite situation. Contractors cannot start exploitation activities while submarine cables that were laid on the same area of seabed before remain there. Such cables should be removed to make the site free for deep seabed mining that appears to be improbable. Alternatively, another area should be considered for deep seabed mining that is also not an easy solution taking into account high costs of exploitation activities. The third option is to negotiate the situation between a cable company and contractor, but it might be difficult to reach an agreement due to conflicting interests these two subjects have. In these circumstances, the logical decision would be an elaboration of practical instructions to be followed by both parties in conflict. Thus, Draft Regulations had given certain priority to submarine cables in the case when they were laid in the Area before

105 Draft Regulations on Exploitation of Mineral Resources in the Area, Draft regulation 33. 106 Draft Regulations on Exploitation of Mineral Resources in the Area, Schedule 1 “Use of terms and scope”. 107 Draft Regulations on Exploitation of Mineral Resources in the Area, Draft regulation 35 “Preventing and responding to Incidents”. 263 deep seabed mining activities were planned to be conducted in the same site. However, the Regulations do not address how this issue should be resolved apart from negotiations that might not bring the result.

The ISA has no jurisdiction over submarine cables since it is not related to its competence108. The questions of how to act in the event of such conflict, and what activities should be given priority in the event they overlap remain open in the law of the sea. A comprehension of this problem already exists given that the ISA together with the ICPC had realized the need for cooperation and joint actions and concluded a Memorandum of Understanding109 concerning the use of the international seabed area that provides for the exchange of information on cable routes and proposed sites for resource development in the area. The ICPC also applied for observer status at the ISA.

Legal problems specified in this chapter, as well as numerous adjacent factors, make implementation of submarine cable projects a challenging task. For instance, the political factor goes closely with the legal issue and may influence the development of submarine cable project by creating obstacles for a private sector. It was noted, for instance, during the negotiations on Northeast Passage telecommunications cable project110. However, political wills of states shall not generate obstacles for cable industry given the value and connectivity brought to states by submarine cables.

108 The competence of the ISA is defined in section IV, subsection A of the UNCLOS. 109 Memorandum of Understanding between the ICPC and the ISA, op.cit. 110 Northeast Passage telecommunications cable project, Reports 3-2016, Ministry of Transport and Communications of Finland, available at https://www.lvm.fi/documents/20181/880507/Reports+3-2016.pdf/db8fcdda- af98-4a50-950d-61c18d133f74, last visited 01/09/2020. 264

CHAPTER VIII THE MEANS TO CHANGE THE EXISTING LEGAL REGIME

Change of the existing legal regime appears to be a complicated and time-consuming process. The newly introduced changes would not necessarily be welcomed by the involved actors and in the process of implementation they could reveal inconsistencies. Therefore, this chapter examines how the international legal regime of submarine cables could be improved. Possible courses of action in changing the legal regime are taken into consideration before suggesting proposals of its improvement.

Two modes of changing international law concerning submarine cables are considered in this chapter. First is the formal change of international law through the conventionally established procedures. Second is the informal change of international law following non- formalized means that proved their efficiency in practice. The conclusion indicating the most optimal way to change the legal regime of submarine cables is formulated based on the analysis.

A) FORMAL CHANGE OF THE LAW OF THE SEA

The following procedures united by the general collocation “formal change of international law” are considered in this sub-section: revision of the UNCLOS meaning reconsideration of its existing provisions; revision of other relevant instruments of international law governing submarine cables; and adoption of a completely new instrument to improve the existing legal regime.

Before examining the proposed options, a general reference to these procedures in accordance with the Vienna Convention on the Law of Treaties, 19691 would benefit the analysis.

1 Vienna Convention on the Law of Treaties, concluded 22 of May 1969, entered into force 27 of January 1980, UNTS, vol. 1155, p. 331. 265

The term “revision” is hereby used as a general term to reflect the possibility to change an international agreement. It includes two modes: amendment (change of the text of an agreement between all parties to a multilateral treaty) and modification (change of the text of an agreement between two or more of the parties to a multilateral treaty to modify the treaty as between themselves)2.

Conclusion of new treaties is an action inherent to any state. Article 6 of the Vienna Convention on the Law of Treaties, 1969 provides that “every State possesses capacity to conclude treaties”. Therefore, a completely new instrument to be adopted in relation to submarine cables would also be in accordance with international law.

1. Revision of the UNCLOS

In the scope of the revision of the UNCLOS, the following procedures are in focus: amendment of the UNCLOS text and modification of the UNCLOS. Examination of these two formal procedures is followed by the analysis of the appropriateness of these procedures in relation to submarine cables. a. Amendment of the UNCLOS text

By the amendment, the alteration or supplementation to a provision of an international treaty is commonly meant in public international law. Therefore, the procedure of amending the UNCLOS is discussed below.

1) The origin of the issue

During the negotiations on the adoption of the text of the UNCLOS, three alternatives on how to include formal amendment procedures to the final version of the convention were considered3.

2 See detailed rules for amendment and modification of treaties in Articles 39-41 of the Vienna Convention on the Law of Treaties 1969. 3 D. Freestone, A. Elferink, “Flexibility and innovation in the law of the sea – will the LOS Convention amendment procedures ever be used?” in A. Elferink (eds.), 266

The first option was to intentionally avoid including any amendment procedure directly in the text. Had this option been chosen, general provisions of the Vienna Convention on the Law of Treaties4 would apply. In particular, Part IV “Amendment and modification of treaties” with the main idea that any international treaty can be modified through the agreement between its parties. Article 40 further specifies the procedure for amending a multilateral treaty between all parties and Article 41 addresses the procedure of amendment for certain parties of a treaty to be valid only between them without affecting the rights and obligations of other parties.

The second variant was the call for reviewing the convention after a certain amount of years after its entry into force to analyze circumstances that have changed and assess current needs for regulation. The right to call for review was supposed to be given to any party of the UNCLOS, and the UN GA was expected to continue the process based on the call for review.

Finally, the third alternative was a simplified procedure for amending technical annexes and appendices. Proposals for institutionalized review were expressed by Peru5 and Portugal6. However, the final text of the UNCLOS includes procedures different to those proposed during the negotiations.

2) Current procedures

There are several procedures to amend the UNCLOS currently foreseen in the text of the convention. They relate either to an amendment of any provision of the convention (general procedures) or to an amendment of a specific provision or part of it where

Stability and change in the law of the sea: the role of the LOS Convention, Leiden/Boston: Martinus Nijhoff Publishers, 2005, pp. 169–221, p. 173. 4 Vienna Convention on the Law of Treaties, concluded 22 of May 1969, entered into force 27 of January 1980, UNTS, vol. 1155, p. 331. 5 A/CONF.62/L.22 (1978), IX Official Records 180 (Peru). Introduced at the 91st plenary meeting (1978), paragraph 3, IX Official Records 17. 6 A/CONF.62/L.23 (1978), IX Official Records 181 (Portugal). Introduced at the 96th plenary meeting (1978), paragraph 34, IX Official Records 34. 267 additional rules may apply (specific procedures). Generally, an amendment should be considered as an amendment of a certain individual provision of the convention7 and not as a set of provisions. However, amendments should be harmonious and consistent with the text of the UNCLOS. i. General procedures

Among general procedures to amend the UNCLOS, the first is to convene an amendment conference8. The convening of an amendment conference has several restrictions. First, it is possible only after ten years after the entry into force of the convention (that have passed on 16th of November 2004). Second, provisions relating to activities in the Area cannot be amended under Article 312 provided that for them a separate procedure is foreseen. Finally, the amendment proposal should be communicated to the Secretary- General of the UN who shall further deliver the notice of a proposed amendment to other state parties9. Then, if, within 12 months from the date of the communication to members of the convention, not less than one half of them favorably reply to the request, the Secretary-General should convene the conference. Once the conference is convened, states parties should make all the efforts to reach the consensus on the proposal. In case of all the efforts to reach the consensus have not brought an effect, the voting procedure applies10.

The second general procedure to amend the UNCLOS applicable to almost all of its provisions is a simplified procedure foreseen by Article 313. According to this procedure, any state party to the convention may bring a proposal to the Secretary-General concerning the amendment of the UNCLOS without convening a

7 M. Nordquist, S. Nandan, S. Rosenne, (eds.), The United Nations Convention on the Law of the Sea 1982: A Commentary, Dordrecht, Boston, and London: Martinus Nijhoff Publishers, 1993, vol. V, p. 247. 8 UNCLOS, Article 312. 9 UNCLOS, Article 312 (1). 10 UNCLOS, Article 312 (2). 268 conference. There is no established minimum term until the proposal may be submitted in contrast to the procedure of convening of an amendment conference. Upon a receipt of a proposal the Secretary- General communicates it to all other members of the convention that are expected to express their views on the suggested amendment. ii. Specific procedures

A specific procedure to amend provisions relating to the activities in the Area is foreseen by Article 314. Any state party to the convention may send the proposal to the Secretary-General of the ISA who shall further circulate the proposal among other members. A condition of the proposal to proceed is the approval from the Assembly following the consent of the Council of the ISA. Should the representatives of states approve the proposed amendment, it must be considered adopted.

A special procedure also exists for amendment of Annex VI of the UNCLOS11. There is also Article 154 convening for a periodic review of the convention by the ISA’s Assembly. The review should take place every five years. However, such review does not equal to an amendment, and there is no mention that after the review the UNCLOS could be amended12.

A general restriction is that no amendments can modify the fundamental principle of the common heritage of mankind13. However, it does not appear to be highly relevant to the regime of submarine cables given that it constitutes a competitive legal regime of the seabed as provided in chapter VII. As a general rule, amendments to the UNCLOS are open for signature by states for

11 UNCLOS, Annex VI, Article 41. 12 M. Nordquist, S. Nandan, S. Rosenne, (eds.), The United Nations Convention on the Law of the Sea…, vol. V, op. cit., p. 248. 13 UNCLOS, Article 311 (6). 269 twelve months from the date of adoption, at the UN Headquarters in New York, unless otherwise is provided in the amendment itself14. b. Modification

Apart from the amendment, there is also a possibility for states to modify the UNCLOS by concluding agreements modifying or suspending the operation of the UNCLOS. Such modifying agreements apply exclusively to relations between parties that signed the agreement without altering the legal regulation for other states15. Modification requires the following criteria to be satisfied. First, agreements modifying the UNCLOS should not be incompatible with the effective execution of the object and purpose of the UNCLOS. Second, they should not affect the application of the basic principles established by it. Third, agreements modifying the UNCLOS should not affect the enjoyment by other members of the convention of their rights or the performance of their obligations under it. Finally, they should not change the basic principle relating to the common heritage of mankind16. Moreover, states intending to modify the convention should inform all other states parties17. c. Appropriateness of the revision in relation to submarine cables

Concerning general amendment procedures, the convening of an amendment conference is the first available option. The feature to be considered in this method to amend the UNCLOS is a high number of parties that should reply to the proposal so the Secretary-General may proceed with it. One-half of member states to the UNCLOS as of September 2020 amounts to eighty-four states18. To receive a

14 UNCLOS, Article 315. 15 UNCLOS, Article 311 (3). 16 UNCLOS, Article 311 (6). 17 UNCLOS, Article 311 (4). 18 See the UN website, Division for Ocean Affairs and the Law of the Sea, consolidated table of ratifications/accessions, et cetera (pdf format), available at https://www.un.org/depts/los/reference_files/chronological_lists_of_ratification s.htm, last visited 01/09/2020. 270 formal reply from eighty-four states with different economic, political and social conditions within twelve months appears to be complicated in practice. Moreover, since not many states have adopted the progressive legislation on submarine cables and not many of them dedicate sufficient attention to their legal regulation, there are reasonable concerns that states would not be interested in amending the text of the UNCLOS in relation to submarine cables.

However, should the conference consider the proposed amendment to be convened, the provision about consensus (“conference should make every effort to reach agreement on any amendments by way of consensus and there should be no voting on them until all efforts at consensus have been exhausted”19) also makes this procedure controversial in terms of the possibility to be triggered. Once during the negotiations on the UNCLOS text during the Third UN Conference on the Law of the Sea states have put all their efforts to reach this consensus for the regulation of ocean affairs. Enormous endeavors taken by states to formulate provisions of the UNCLOS are improbable to be repeated in the current situation. More and more issues appear in the international law agenda these days. In the circumstances when a universal agreement for ocean affairs already exists, convening the conference to consider the proposed amendment could be considered by some states as dedicating excessive efforts to resolve this issue. Regarding submarine cables, they have never appeared on the international law agenda as a top discussed topic such as, for instance, the concept of the “common heritage of mankind”. It appears that although the significance of submarine cables for the modern world overwhelmingly changed during the years, states would still evaluate this issue as less important by force of habit.

The scope of the conference to be convened to consider the proposed amendment is also not addressed by Article 312 clearly. Whether the conference should be limited only to the question submitted in the initial request or it may imply broader discussion and include other topics remains unclear. Once the conference is

19 UNCLOS, Article 312 (2). 271 convened, and a large amount of parties are brought together it would sound logical to also discuss adjacent matters beyond the initial proposal. The matter of submarine cables would certainly include consideration of side issues since many actors, levels of regulation and fields of international law are included in the submarine cables legal regime. However, the negotiations history and the text itself tend to restrict the discussion in the framework of the conference only to the initially proposed issue20. Therefore, until the moment no communication to the Secretary-General was made. This is without mentioning that convening the conference is a costly and labor-consuming process.

Concerning the simplified procedure of the UNCLOS amendment, the procedure itself appears to be progressive and simple. It allows making fast changes in the text from the very beginning. However, there is an essential limitation that almost makes it unenforceable. If during the next twelve months after the proposal was communicated to the members of the convention only one state makes an objection the proposal would be withdrawn. Taking into consideration the overall number of states parties to the convention it appears that any proposal might be easily objected by one or another member. Legal as well as political factors should be evaluated in relation to this matter. This question includes not only law but also politics and diplomacy. Submarine cables comprise a strategically important infrastructure for states, and if there is a risk that the new amendment may affect the interest of one or another state, this tool of cancelling the whole proposal would definitely be used by a presumably affected state. Thus, the simplified procedure does not appear to be that simplified. It has never been used by states parties and will unlikely to be triggered in the future.

Finally, it is not entirely clear whether amendments of the UNCLOS comprise a package deal. In other words, if not all proposals are agreed by states, only those that were agreed should be adopted or none of the proposals should come into force due to the absence of

20 D. Freestone, A. Elferink, “Flexibility and innovation in the law of the sea…”, op. cit., p. 177. 272 consensus between the parties. On the one hand, the convention is silent on this matter. On the other hand, the UNCLOS itself was adopted as a package deal. Provided that until now no practice on amending the UNCLOS exists, not all aspects of its formal change are clear and there are no visible prerequisites that submarine cables would become the first issue to be revised in the scope of formal amendment.

In relation to specific procedures to amend provisions relating to the activities in the Area, it is worth emphasizing that neither Part XI of the UNCLOS “The Area” nor Annex VI contains provisions directly affecting submarine cables. Thus, the amendment procedure under articles 314 and 41 of Annex VI does not have grounds to be used for amendment of the provisions relating to submarine cables.

Concerning the modification, since the UNCLOS itself does not specify the scope of modification, states may have different views on the issue of agreements that fall in the scope of Article 311 (3) (agreements modifying or suspending the operation of provisions of the convention)21. When there is no clear understanding it might create fragmentation and would not assist the harmonius development of the legal regime. Furthermore, basic principles not subject to change by such modifying agreements is a relatively controversial concept, and interested states may argue that various provisions of the UNCLOS might be attributed the status of basic principles. There is no evidence that provisions concerning submarine cables are included in the scope of basic principles. On the one hand, they do given that the UNCLOS is the principal document constituing their legal regime and presumably all main provisions entitled principles should be written there provided that the initial idea of the UNCLOS was to write down the fundamental provisions governing the use of the sea. On the other hand, there are a lot of provisions contained in the convention, not necessarily relating to submarine cables, and not all of them can be considered as basic principles. Thus, this tool is improbable to work given that it covers the wide range of provisions that might be interpreted as

21 Ibid, p. 183. 273 basic principles and not subject to the modification. Overall, the modification procedure does not provide an efficient and easy method for state parties to formally change the convention due to ambiguity and various possibilities to apply it in practice.

To date during more than twenty years since the UNCLOS had entered into force no proposal neither under general provisions nor under the specific provisions concerning submarine cable was made by state parties. The modification procedure has never been used in practice as well.

There might be various reasons for non-application of the discussed procedures. Generally, states remain reluctant to any changes in the legal regime of submarine cables and do not give priority to this matter. The Secretary-General of the UN shall report to all members of the UNCLOS, the ISA, and competent international organizations on issues of a general nature that have arisen with respect to the convention22. Although problems of submarine cables legal regime exist in practice as analyzed in chapter VII, it was never the case to specifically inform parties to the convention about submarine cables. Therefore, it remains to be less important area of regulation for members of the UNCLOS in comparison to other issues. Submarine cables as a critical infrastructure and as a provider of services are not promoted in the international community and do not constitute the primary issue to discuss in the international arena. Another reason might be the risk that any adopted change could provoke further amendments from other states and thus, the fundamental principles of the UNCLOS might be reconsidered23. In this case, should one amendment or modification in relation to submarine cables negotiated in practice, it would possibly give rise to changing other law of the sea institutions, principles, and conventional provisions.

22 UNCLOS, Article 319 (a). 23 J. Barret, “The UN Convention on the Law of the Sea: “A Living Treaty?” in J. Barret, R. Barnes, Law of the sea. UNCLOS as a Living Treaty, London: The British Institute of International and Comparative Law, 2016, pp. 3-37, p. 16. 274

Despite the existence of an alternative opinion supported by representatives of non-governmental organizations that the UNCLOS should be subject to the formal change24 it appears that revision of the UNCLOS through amendment and modification procedures does not stand as an efficient tool to be used for improving the legal regime of submarine cables.

2. Revision of other instruments constituting the legal regime of submarine cables

In this sub-section the possibility to formally change agreements constituting the legal regime of submarine cables is examined. It is followed by the conclusion of the appropriateness of their formal amendment. a. Changing texts of relevant international agreements and resolutions of international organizations on submarine cables

Apart from the UNCLOS there are other instruments regulating submarine cables and contributing to their legal regime as addressed in detail in chapter V. The purpose of this section is to analyze the possibility of formal amendment of such instruments by distinguishing common and diversified practices in formulations concerning amendments.

Primarily, forms of initiating and adopting changes must be considered. Some instruments such as COLREGs25, Energy Charter Treaty26 and Convention on the Protection of the Underwater Cultural Heritage27 provide that amendments can be proposed by any

24 D. Mittler, “Needed: A real Constitution for the Oceans!”, Greenpeace International, 2012, available at https://www.greenpeace.org/archive- international/en/news/Blogs/makingwaves/needed-a-real-constitution-for-the- oceans/blog/43448/, last visited 01/09/2020. 25 COLREGS, Article VI (1). 26 Energy Charter Treaty, op. cit., Article 42 (1). 27 Convention on the Protection of the Underwater Cultural Heritage 2001, op. cit., Article 31 (1). 275 contracting party. On the opposite, Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter does not specify how amendments are initiated in contrast to its Protocol giving this right to any contracting party28. Convention on Limitation of Liability for Maritime Claims specifies that it can be amended by the conference of contracting parties at the request of not less than one-third of parties to the convention29. The same approach is taken by the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation and its Protocol specifying one third or ten states parties, whichever is the higher figure30. To compare, the UNCLOS requires one half of states to agree to convene a meeting for the purpose of adopting amendments31.

A proposal for amendments can be submitted in different manners. Some instruments provide with additional filters for a proposal to be considered by contracting parties. For instance, preliminary approval from a special committee before a proposal could be communicated to contracting parties for consideration on a meeting32 or communication and preliminary approval by more than one half of the states33. Some agreements, on the opposite, do not contain any preliminary procedure before consideration of amendments by all parties to the agreement34. Concerning resolutions of international organizations, there is no mechanism of change provided by the resolutions themselves. Generally, the same international authority

28 Protocol of 1996 to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter 1972, op.cit., Article 21 (1). 29 Convention on Limitation of Liability for Maritime Claims 1976, op.cit., Article 22 (2). 30 See Article 20 (2) of the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation 1988, op.cit., and Article 20 (2) to the Protocol to this convention of 2005, respectively. 31 UNCLOS, Article 312 (2). 32 See COLREGS, Article 6 (2); Convention on the Protection of the Underwater Cultural Heritage 2001, op. cit., Article 31 (1). 33 Convention on the Protection of the Underwater Cultural Heritage 2001, op. cit., Article 31 (1). 34 Energy Charter Treaty, op. cit., Article 42 (2). 276 such as, for instance, IMO issues new resolution repealing previous one and making necessary amendments.

Consideration of amendments is processed by all states parties to a certain convention during common meetings. Some instruments do not distinguish and address a meeting for the purpose of revision in general35. Some provide that amendments can be approved during regular and special meetings or emphasize that the convention should be under a continuous review36. For a decision to be made the amount of contracting parties voting in its favor in most cases amounts to two-thirds majority of states present at the meeting37. Some instruments such as Convention on Limitation of Liability for Maritime Claims and Energy Charter Treaty do not contain an amount of minimum votes to be received by states to adopt amendments. Furthermore, not all amendments are binding for all states. For instance, some amendments shall, for all contracting parties that have not objected to the amendment, replace, and supersede any previous provision to which the amendment refers. However, for those that objected the amendment it would not necessarily enter into force38. In some cases, states can make a declaration specifying that presently they are not able to accept the amendment which also does not make such amendments binding for

35 COLREGS, Article V (1); Convention on Limitation of Liability for Maritime Claims of 1976, Article 20 (1); Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation 1988, op.cit., Article 20 (1); Energy Charter Treaty, op. cit., Article 42 (2). 36 Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter 1972, op.cit., Article 14 (4). 37 COLREGS, Article VI (3); Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter 1972, op.cit., Article 15 (1) a; Protocol of 1996 to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter 1972, Article 21 (2); Convention on the Protection of the Underwater Cultural Heritage 2001, op. cit., Article 31 (2). 38 COLREGS, Article VI (4). 277 all39. Along with that new members when joining the convention should become parties of the amended text40.

Finally there is a great margin in terms of when amendments come into force: at the same time of adoption41; sixtieth day after two thirds of the parties shall have deposited an instrument of acceptance of the amendment42; ninetieth day after deposit with the depositary of instruments of ratification43; three months after the deposit of the ratification instruments by two thirds of the parties44. Some agreements, on the contrary, do not mention any entry into force procedures45. b. Appropriateness of the revision of other instruments in relation to submarine cables

There is a great diversity in procedures for amendments in every single case of international instrument regulating submarine cables. Starting from the initiative of an amendment and concluding with its entry into force. From the first sight amendment procedures for these conventions are not that strict in comparison to the UNCLOS. Each convention/protocol/resolution taken separately might be amended relatively easy. However, as the legal regime of submarine

39 Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter 1972, op.cit., Article 15 (2). 40 See Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation 1988, op.cit., Article 20 (3); Convention on the Protection of the Underwater Cultural Heritage 2001, op. cit., Article 31 (5). 41 COLREGS, Article VI (4). 42 Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter 1972, op.cit., Article 5 (1) a; Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter 1972, op.cit., Article 21 (3). 43 Energy Charter Treaty, op. cit., Article 42 (4). 44 Convention on the Protection of the Underwater Cultural Heritage 2001, op. cit., Article 31 (4). 45 Convention on Limitation of Liability for Maritime Claims 1976, op.cit.; Convention for the Suppression of Unlawful Acts Against the Safety Of Maritime Navigation 1988, op.cit. and 2005 Protocol to this Convention.

278 cables is already fragmented and versatile as it has been addressed in chapter II if changes to the legal regime of submarine cables to be implemented, they should be implemented consistently. There is no sense in changing every single convention separately. The change should be harmonious meaning that all conventions containing provisions on submarine cables legal regime need to be changed simultaneously and following the same purpose to ensure consistency and integrity. As compared in the previous sub-section, all instruments have different procedures, parties, and terms and conditions on making amendments. Therefore, it is impossible to make changes to all international agreements harmoniously due to several reasons specified below.

The amount of states participating in conventions is different. For instance, one third of states to initiate the change of Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation amounts to 55 states (rough amount out of 166 states currently parties to this agreement46) and is not the same as Convention on Limitation of Liability for Maritime Claims where one third amounts to 18 states (rough amount out of 55 states currently parties to this agreement47). Thus, to trigger the amendment process different amount of states is concerned and the convention with higher number of parties would most probably be more reluctant to changes due to various interests of states to be agreed.

The formal change of international instruments regulating submarine cables should be harmonious. It means that these instruments to improve the legal regime of submarine cables need to be amended in cooperation with each other. The preliminary study of all texts and practices in relation to each of the conventions, bounds and ties between them need to be examined to be effective. However, there is no international conference, forum or research unit considering

46 IMO, Status of Treaties, available at http://www.imo.org/en/About/Conventions/StatusOfConventions/Documents /StatusOfTreaties.pdf, last visited 01/09/2020. 47 IMO, Status of Treaties, available at http://www.imo.org/en/About/Conventions/StatusOfConventions/Documents /StatusOfTreaties.pdf, last visited 01/09/2020. 279 these instruments together as constituting the legal regime of submarine cables. In public international law these instruments are considered as agreements from different legal areas and as a result, it is not entirely clear how to coordinate the amendment process between all instruments and make them work together. Furthermore, only states can take part in the amendment procedure of international instruments specified above. However, as examined in chapter II submarine cables legal regime is diversified and includes many actors. First of all, private companies that are not taken into consideration by international law although their participation in the amendment procedures to construct the new improved legal regime is highly desirable.

Finally, direct text amendments do not appear to be the most progressive and efficient way of improvement given that the world is changing, and they could rapidly become obsolete. Therefore, international practice does not often use the opportunity of formal amendment. Theoretical possibility for formal amendment of submarine cables legal regime through changing texts of relevant international agreements exists. However, the process appears to be time-consuming, uncoordinated, and finally impractical. Thus, efficient and harmonious change of the legal regime of submarine cables requires another form of action.

3. Adoption of a new separate legal instrument on submarine cables

Improvement of the existing legal regime of submarine cables might be considered not only through revision of existing instruments but also through the adoption of entirely new instrument reflecting last changes in international law and practice. This sub-section is dedicated to the analysis of the possibility to incorporate a new instrument in the existing international law and to examination of whether it would be beneficial in the field of submarine cables. a. Existing proposals

The idea to adopt a new international law instrument with regard to submarine cables is expressed in the international community from

280 time to time. The form and proposed content may vary, however, the idea remains the same: it should be a new international agreement specifically dedicated to submarine cables.

It is often discussed as a separate treaty to protect submarine cables from different threats48. For instance, a new cable convention or an additional protocol to one of the existing legal documents. The primary issue proposed to be reflected in this new instrument is the qualification of actions to destroy or damage submarine cables as internationally punishable offenses49. The idea of examining damage to submarine cables as an international crime at the international law level may be advantageous. However, it requires detailed study of the objective of the crime, mechanism for the execution of punishment, and an international institution to be responsible for it.

Some authors suggest the development of a new instrument in the form of Submarine Cable Industry Code to be elaborated by the ISA. They argue that it would assist in the harmonization between international cable industry practices and national approaches to cable regulation as guided by the UNCLOS50. It might be drafted in the form of non-binding instrument. For instance, similar to the 1995 Food and Agriculture Organization’s (FAO) Code of Conduct for Responsible Fisheries51. “The ICPC and the ISA should consider a joint code of conduct with practical recommendations for cable owners and Contractors with ISA”52. The new code should not be geographically limited by the Area. It should include other maritime zones and apart from contractors of deep seabed mining should

48 R. Sunak, “Undersea Cables. Indispensable, insecure”, Policy Exchange, 2017, pp. 2-43, p. 8. 49 Beckman R., “A New International Convention or a Protocol”, Centre of International Law, Workshop on Submarine Cables and the Law of the Sea, 2009. 50 S. Coffen-Smout, G. Herbert, “Submarine cables: a challenge…”, op. cit., p. 444. 51 Food and Agriculture Organization, “Code of Conduct for Responsible Fisheries”, Rome, FAO, 1995., available at http://www.fao.org/3/a-v9878e.pdf, last visited 01/09/2020. 52 Submarine Cables and Deep Seabed Mining…, Technical Study: No. 14, op. cit., p. 6. 281 cover all other interests at sea given that cables could intersect with other activities. However, if this code to be adopted it would not have a broad scope provided that the ISA’s area of regulation is limited by the Area in terms of territory and by contractors in terms of subjects of regulation.

The more realistic option on changing the existing legal regime of submarine cables established by the UNCLOS would be an adoption of the new separate implementation agreement concerning submarine cables. Especially taking into consideration that in the law of the sea, two implementation agreements had already been adopted and entered into force. First, is the 1994 Implementation Agreement relating to Part XI53 and second, is the 1995 Fish Stock Agreement54. The idea of these agreements was to address issues that appeared not to be covered by the UNCLOS as was realized after the convention had entered into force55.

For instance, the Agreement on the Implementation of Part XI, expressly repealed some provisions of the UNCLOS and substituted them with new ones56. It clearly states that since the date of adoption of the agreement and its entry into force economic and political circumstances have changed that influenced the implementation of

53 Agreement relating to the implementation of Part XI of the UN Convention on the Law of the Sea, op.cit. 54 The UN Agreement for the Implementation of the Provisions of the UN Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, adopted 4 of August 1995, entered into force 11 of December 2001, UNTS, vol. 2167, p. 3. 55 S. Borrás Pentinat, “Related agreements and Spain: Fish stocks and marine biological diversity”, Spain and the Law of the Sea: 20 years under LOSC, Spanish Yearbook of International Law, vol. 27, 2017, pp. 199-209, p. 207. 56 For instance, the UNCLOS provisions relating to the transfer of technology (Article 144) prescribing mandatory transfer of technology were eliminated in 1994 Agreement and it was set that they shall not apply (Annex, section 5 (2)). Instead new principles governing the transfer of technology were introduced by the 1994 Agreement (Annex, section 5 (1)). 282 the provisions of Part XI57. Furthermore, it provides that Part XI of the UNCLOS and the 1994 Agreement should be “interpreted and applied together as a single instrument”58. As considered by some authors it was the actual amendment of the UNCLOS. However, without following the formal amendment procedure prescribed in the text of the convention59. b. Appropriateness of the adoption of a new legal instrument in relation to submarine cables

The idea of an implementation agreement may bring positive results and could be examined in the context of improving the legal regime of submarine cables. However, several nuances might make it irrelevant.

First, submarine cables regulation is dispersed through the UNCLOS and is not formulated as a separate part in contrast to previously mentioned agreements. Therefore, it would be demanding to formulate a consistent and coordinated implementation agreement and take into consideration all other provisions of the UNCLOS to which references are made in articles devoted to submarine cables. This would require changes in implementation of main submarine cables provisions and of additional amount of articles.

Second, implementation agreements oblige only states that expressed their consent to be bound by them. If states do not dedicate sufficient attention to submarine cables nowadays and do not implement the provisions of the UNCLOS, it is doubtful that a special implementation agreement would make a significant change. The Fish Stocks Agreement is different in the sense that states may

57 Agreement relating to the implementation of Part XI of the UN Convention on the Law of the Sea, op.cit., Preamble. 58 Agreement relating to the implementation of Part XI of the UN Convention on the Law of the Sea, op.cit., Article 2. 59 L. Nelson, “The New Deep Seabed Mining Regime”, IJMCL, vol. 10, 1995, pp. 189–203, p. 192; B. Oxman, “The 1994 Agreement and the Convention”, American Journal of International Law, vol. 88, 1994, pp. 687-696, p. 695. 283 join it without being the part of the UNCLOS and vice versa60. It provides more flexibility, however, does not guarantee the interest to submarine cables expressed by states in the form of an international agreement.

Finally, a disadvantage of this approach implies that the law always goes after changes appear in practice. It is impossible to foresee all issues that could arise in the time of adopting the new agreement, and there is no guarantee that circumstances would not significantly change few years after the new instrument is adopted. Furthermore, it remains unclear how much time it would take to draft the new instrument. This statement is correct for the law of the sea and submarine cables in particular and for any other branch of international law. Therefore, the adoption of a new instrument concerning submarine cables appears to be non-efficient way of improving submarine cables legal regime.

Formal change of the existing legal regime of submarine cables offers several options on how modifications can be done. However, none of the possibilities examined above, most probably would not bring desirable effect in the near future. The main disadvantage of formal change of law is its inconvenience and slow reaction on current conditions. Therefore, alternative procedure needs to be examined.

B) INFORMAL CHANGE OF THE LAW OF THE SEA

Formal change proved its fallacy in relation to effective change of the existing legal regime of submarine cables as discussed above. This section is dedicated to the alternative, informal way of improvement and analyzes its applicability in the case of submarine cables. First, modern doctrines relating to informal change of international law are considered: self-regulated regime, global

60 S. Alam, J. Bhuiyan, T. Chowdhury, E. Techera, Routledge Handbook of International Environmental Law, London and New York: Taylor & Francis Group, 2013, p. 269. 284 compact concept, and conventions as “living instruments” theory. Second, adequate interpretation of existing regime is examined.

1. Application of modern doctrines

The present sub-section is dedicated to the examination of several concepts and theories justifying changes in international law and the possibility to apply them to improve submarine cables legal regime. a. Self-regulated regime of governance

In the circumstances of lack of effective regulation of submarine cables in international law the first option to consider in the framework of informal change is a self-regulated regime. This concept was proposed by Elinor Oström on the example of irrigation systems61. Although Oström provides examples of small communities that are successfully self-regulated62, the case of submarine cables is different. Cables do not serve the needs of a local community but bring a value to many actors all over the world. However, since the legal regime provided by the UNCLOS and followed by other international conventions does not entirely ensure successful regulation, the regime of self-governance for submarine cables is an alternative solution.

As it was analyzed in chapter VI, submarine cables are already regulated by internal rules elaborated by the cable industry itself that might be considered as self-regulation. For instance, by FIDIC standards, worldwide maintenance agreements, private maintenance agreements, et cetera. Many cable companies follow rules and guidelines proposed in these instruments given that it serves for their own benefit.

However, it is complicated to properly develop the self-regulated regime. It should not become a substitute of governmental

61 E. Oström, R. Gardner, “Coping with Asymmetries in the Commons: Self- Governing Irrigation Systems Can Work”, Journal of Economic Perspectives, vol. 7, Issue 4, 1993, pp. 93–112, p. 95. 62 S. Cogolati, J. Wouters, The Commons and New Global Governance, Glos: Edward Elgar Publishing Limited, 2018, p. 2. 285 regulation and should serve as “an important supplement to government oversight.”63 The key point in developing the self- regulated mode is to find a balance between the necessary involvement of private actors and the regulatory power of states64. Therefore, cable companies should be ready to take the responsibility of regulation in its hands and to ensure the proper level for the whole industry. This model currently constitutes the legal regulation of submarine cables since private actors are involved in the process to a certain extent, and it clearly demonstrates gaps and disadvantages as provided in chapter VII. However, it is not possible to wholly give the regulation to the hands of private sector. Thus, the self-regulated mode appears to be one-sided from this perspective.

Another disadvantage of self-regulation in relation to submarine cables is that it may result in fragmentation. When the system is decentralized, and many subjects are involved in its development the risk of colliding rules increases. Submarine cables should be completely regulated neither publicly nor privately and instead should have a hybrid regime, the same as their nature, being a public good in the hands of a private sector. The balance between public and private regulation should be found in this issue. Thus, the self- regulated mode does not appear to be the most appropriate tool to improve the legal regime of submarine cables. b. Global Compact concept

Another option to justify changes in submarine cables legal regime through informal way is the application of “global compact” concept that requires considering how this new regime of submarine cables would be developed and integrated in practice.

63 S. Trevisanut, “The Role of Private Actors in Offshore Energy: Shifting Models of Participation” in N. Bankes, S. Trevisanut, Energy from the Sea: An International Law Perspective on Ocean Energy, Leiden, Boston: Brill Nijhoff, 2015, pp. 85-105, p. 99. 64 Ibid, p. 659. 286

The “Global Compact” initiative is formulated in the framework of the UN65. The primary idea of the project is to attract companies to share responsibility of sustainable development for making the world better. Current international law gradually recognizes the role of companies and thus, they deserve the right to participate in its formation.

The concept itself appears to be extremely valuable. Especially in fields where companies take part in activities concerning environmental matters such as climate change, marine pollution, oil drilling, et cetera. In such fields companies contribute significantly to the deterioration of environment and cause negative impact affecting the future. Therefore, to alleviate traces of business it is reasonable to make them participate and cooperate in the framework of the “Global Compact” concept sharing the responsibility for negative consequences. However, in the field of submarine cables the contribution of private sector to the sustainable development is not that significant. First, provided that submarine cables do not cause pollution and companies do not have the same responsibility as those working in sectors affecting the environment. Thus, submarine cables are already sustainable themselves. Until now they are considered the most efficient way to transmit communications worldwide. Second, submarine cables are designed to be laid and serve for a long period. Therefore, their impact on the environment and competing activities of the seabed is minimal. Once laid submarine cables would not cause inconveniences for a long time that characterize them as a sustainable infrastructure. Therefore, it appears that the “Global Compact” concept is not of particular relevance to submarine cables in its accepted formulation.

However, the concept may apply in relation to the improvement of the legal regime of submarine cables in an extended way. In particular, concerning the involvement of companies and other actors in creation of a new legal regime: non-governmental organizations, individuals, states, et cetera. Furthermore, it may be

65 UN, “About the UN Global Compact”, available at the UN website at https://www.unglobalcompact.org/about, last visited 01/09/2020. 287 advantageous not only from the perspective of sustainable development but also from the perspective of balancing the interests of involved actors. Provided that submarine cables area involves numerous interests as it was analyzed in chapter II, all such interests deserve the right to take part in the development and improvement of the new submarine cables legal regime. Some companies owning submarine cables already joined the “Global Compact” concept66. To assume that improvement of submarine cables regulation may form a part of the “Global Compact” concept, such companies by joining the project expressed their intention to participate in constructing the improved legal regime.

The “Global Compact” concept in general might be considered as progressive and valuable theory. However, due to particularities of submarine cables it cannot be applied as the main tool to change their legal regime. c. Convention as a living instrument

The idea of considering conventions as “living instruments” does not originate in the law of the sea. The European Convention on Human Rights was the first international agreement to be addressed as a living instrument meaning that it should apply in the light of present-day conditions67. The living treaty is the treaty adapting to new conditions and applying to the circumstances that were not in place when the treaty was adopted. The “living instrument” theory greatly extended its initial framework and currently serves not only for international human rights law but also for many other areas.

66 For example, TELE Greenland, Telefonica, Deutsche Telekom. See section “Our participants” at the Global Compact website available at https://www.unglobalcompact.org/what-is- gc/participants/search?page=7&search%5Bkeywords%5D=&search%5Bper_pag e%5D=10&search%5Bsectors%5D%5B%5D=48&search%5Bsort_direction%5D =asc&search%5Bsort_field%5D=&utf8=%E2%9C%93, last visited 01/09/2020. 67 Tyrer v. the United Kingdom, 25 April 1978, Series A no. 26, p. 15, paragraph 31; Soering v. the United Kingdom, Soering v. the United Kingdom, 7 July 1989, Series A no. 161, p. 40, paragraph 102; and Loizidou v. Turkey, 23 March 1995, Series A no. 310, p. 26, paragraph 71. 288

This concept also applies to the World Heritage Convention, 197268, the Refugee Convention, 195269 and several other international agreements. Therefore, the concept of a “living instrument” deserves a detailed consideration.

In the case of the legal regime of submarine cables, “there is no doubt that the UNCLOS need not be interpreted as if it were a static instrument, cast in stone somewhere around 1982. Many of its terms are likely to be inherently evolutionary”70. This is the approach how the UNCLOS is viewed by the international law nowadays. The applicability of the concept of the living instrument to the UNCLOS means flexibility71. In the case of submarine cables several issues may receive adequate implementation if the concept of the living instrument is considered to apply to the UNCLOS. For instance, the convention does not provide adequate regulation over offenders cutting submarine cables, the right to board vessels suspected in illegal activity of causing damage to cables and protection of cables on land72. There are many matters not included in the convention. Alternatively, some included matters do not regulate the issue comprehensively and need to be properly interpreted. For instance, permissions of states to immediately take a decision on admission of a foreign cable ship for the prompt start of repair operations. It applies both to the territorial sea and to maritime zones outside the territorial sea. The time for cable repairs might be significantly

68 M. Nevitt, “The National Historic Preservation Act: Preserving History, Impacting Foreign Relations’”, Berkley Journal of International Law, vol. 32, 2014, pp. 388-444, p. 407. 69 G. Goodwin-Gill, “The search for the one true meaning…”, in G. Goodwin- Gill and H. Lambert (eds.), The Limits of Transnational Law: Refugee Law, Policy Harmonization and Judicial Dialogue in the European Union, Cambridge: Cambridge University Press, 2010, pp. 204 – 241. 70 A. Boyle, “Further Development of the Law of the Sea Convention: Mechanisms for Change”, International and Comparative Law Quarterly, vol. 54, No. 3, 2005, p. 563-584, p. 568. 71 M. Wood, “Reflections on the United Nations Convention on the Law of the Sea: A Living Instrument” in J. Barret, R. Barnes, Law of the sea. UNCLOS as a Living Treaty, London: The British Institute of International and Comparative Law, pp. 77-82, p. 78. 72 R. Sunak, “Undersea Cables…”, op. cit., p. 6. 289 reduced if states remove all unnecessary permits from their domestic legislation. The UNCLOS and other relevant conventions regulating submarine cables as analyzed in chapter V have been adopted many years ago and circumstances changed since their entry into force. Thus, this theory may adequately apply to all instruments regulating submarine cables.

The proven success of the “living instrument” theory in other fields of international law makes some researchers argue that there is no need for a formal change of the law of the sea, for instance, convening a conference and initiating a formal amendment to the UNCLOS73. Instead, the UNCLOS as a living instrument together with other relevant conventions may successfully cover gaps existing in the current law of the sea74 including deficiencies in submarine cables legal regime as analyzed in chapter VII. The same opinion can be found among the judicial community. For instance, Judge Lucky in his advisory opinion also mentioned that the convention is flexible and adapts to the present-day conditions and changing circumstances75.

In contrast to the European Convention on Human Rights widely discussed as a living instrument76, the concept of a living instrument in relation to the UNCLOS is relatively new and does not constitute a widespread phenomenon yet77 although some researchers entitle

73 M. Wood, “Reflections on the United Nations Convention…”, op. cit., p. 78. 74 E. Conde, “Book Review: A. Proelss, The United Nations Convention on the Law of the Sea. A Commentary, Spain and the Law of the Sea: 20 years under LOSC, Spanish Yearbook of International Law, vol. 27, 2017, pp. 441-442, P. 441. 75 Advisory opinion of 2 of April 2015, ITLOS case №21, Separate opinion of judge Lucky, paragraph 18. 76 G. Letsas, “The ECHR as a living instrument: its meaning and legitimacy” in A. Føllesdal, B. Peters and G. Ulfstein (eds.), Constituting Europe. The European Court of Human Rights in a National, Regional and Global Context, Cambridge: Cambridge University Press, 2013, pp. 106–141. 77 U. Jensch, “The Exclusive Economic Zone as an Instrument for Environmental Management in the North Sea Area”, International Journal of Estuarine and Coastal Law, vol. 5, 1990, pp. 228-240, p. 231; I. Papanicolopulu, “The Law of the Sea Convention: No place for Persons” in D. Freestone (ed.), The 1982 Law of the 290 the UNCLOS the living instrument78. There is no unique opinion that the concept applies to all provisions of the convention. In relation to some articles, the necessity of up-to-date interpretation was recognized. For instance, Article 101 concerning piracy must be “interpreted in good faith in accordance with the ordinary meaning to be given to the terms… in their context and in the light of its object and purpose.”79 However, the convention in general, is not considered to be interpreted due to present day conditions. The same applies to other relevant international agreements regulating submarine cables. Not all of them are widely recognized as having a status of a “living instrument” and thus, this theory cannot be automatically extrapolated to such conventions.

Furthermore, concerning submarine cables, there is an uncertainty that provisions relating to them would fall under the scope of the living instrument theory. The whole convention should be considered as a living instrument and not their separate parts and provisions. Since there is no univocal agreement in the international community that the concept applies to the UNCLOS and all other instruments, using them separately in relation to submarine cables provisions is controversial. In addition, the development of the UNCLOS as a living instrument should be comprehensive. Otherwise, there is a risk of fragmentation of the law of the sea and regulation of submarine cables that is already non-homogeneous taking into consideration the difference of implementation in domestic law. Another concern is that the concept of the living instrument may receive improper application. In particular, to be used when it is profitable to use it and, on the opposite, refused to be used when it is more favorable to adhere to the exact words of the UNCLOS enjoying literal interpretation of its text. There is no exact border where provisions should be interpreted in the framework of the “living instrument” concept. Therefore, the

Sea Convention at 30: Successes, Challenges and New Agendas, Leiden and Boston: Martinus Nijhoff, 2013, pp. 191–200, p. 194. 78 R. Barnes, “The Continuing Vitality of UNCLOS” in J. Barret, R. Barnes, Law of the sea. UNCLOS as a Living Treaty, London: The British Institute of International and Comparative Law, pp. 459-487, p. 461. 79 8 I.L.M. 679, art. 31 (1969). 291 applicability of the concept of the living instrument appears to be controversial to improve the existing legal regime of submarine cables.

2. Adequate interpretation of existing norms

Despite the importance of submarine cables in various spheres such as ensuring economic, security, and social interests of states; interests of individuals; and interests of private companies, their legal regime is far from clear. There are matters not sufficiently developed in international law. When all other, either formal or informal means to change the legal regime are not entirely effective and do not address present needs another solution should be considered. The proposed option to improve submarine cables legal regime in the framework of the present work would be effective change through an adequate interpretation of already existing provisions: concrete, up-to-date interpretation of provisions relating to submarine cables. a. Explaining the need for interpretation

The development of submarine cables industry and required changes in the law of the sea associated with it is not the only field of international law where changes are in progress. For instance, the diplomacy law is also greatly affected by the rapid technological developments, especially by the Internet and electronic communications replacing ordinary diplomatic communications. The Vienna Convention on Diplomatic Relations, 1961 as the main international treaty in this field, similarly to the UNCLOS is ratified by nearly all states in the world and is also improbable to be changed through formal ways. The most appropriate scenario is that this convention will be adapted to the Internet-driven changes through a modern interpretation of the existing provisions80. Therefore, interpretation appears to be a contemporary and efficient way to make changes in existing regimes.

80 J. Kurbalija, “E-Diplomacy and Diplomatic Law in the Internet Era” in Ziolkowski (eds.), Peacetime Regime for State Activities in Cyberspace International Law, International Relations and Diplomacy, Tallinn: NATO CCD COE Publication, 2013, pp. 393-424, p. 424. 292

However, the proper interpretation should not be substituted by a simple broadening of the scope of the international agreement by extending the meaning of words, adding synonyms and analogies. The core of the interpretation should comprise giving existing provisions more mature and deliberate meaning. The key factor in functioning of the legal regime of submarine cable is successful implementation when norms written on paper come into force in practice81. States are not always aware how to properly implement provisions in their domestic legal orders and their practice differs significantly as examined in chapter VI. A good and contemporary interpretation could help to handle this issue. As D. Anderson, the judge of the ITLOS mentioned, among the means of strengthening the UNCLOS is “a need to ensure full and faithful implementation of the regime not only by international organizations (process that is well under way) but also by the States Parties themselves through their national legislation and practice”82. As suggested by some authors, similar to any other “constitution”, the UNCLOS may be changed through the subsequent practice of states concerned83. Here the UNCLOS is used as an example illustrating the powerful potential of interpretation to influence proper application of international law. The same is relevant to other agreements regulating submarine cables. Therefore, the accent is hereby made on interpretation for better implementation.

The starting point of interpretation is the Vienna Convention on the Law of Treaties. Articles 31 and 32 contain general and supplementary means of interpretation. However, they are not always sufficient to cover present needs in interpretation84. Especially

81 Preparatory Committee established by GA, Resolution 69/292: “Development of an internationally binding instrument under the UN Convention of the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction”, 2005. 82 D. Anderson, “Stability and Change in the Law of the Sea” in A. Elferink (eds.), Stability and change in the law of the sea: the role of the LOS Convention, Leiden/Boston: Martinus Nijhoff Publishers, 2005, pp. 222–227, p. 225. 83 M. Aznar, “The Contiguous Zone…”, op. cit., p. 42. 84 K. Hosseinnejad, “On the Nature of Interpretation in International Law”, UCL Journal of Law and Jurisprudence, vol. 4, No. 2, 2015, pp. 225-249, p. 226. 293 in the area of submarine cables where not many provisions are in place and the situation has significantly changed from the time international agreements were adopted. For instance, Article 32 mentions travaux préparatoires meaning that preliminary works, discussions, and negotiations preceding adoption of an agreement are taken into consideration when interpreting a treaty85. In the case of submarine cables, the idea of interpretation could be considered from a different perspective. Since discussions and works on conventions did not cover some topics and issues relevant nowadays, the current situation should be appraised. b. Defining the proposed solution: interpretation for better implementation

Before suggesting concrete interpretation matters, a definition of what shall be understood under the proposed solution “interpretation for better implementation” would be advantageous.

There are numerous definitions of what does “interpretation” mean in public international law86. However, generally it is recognized as a process of clarifying the meaning of an international treaty using different interpretation technics. In the case of submarine cables, the purpose remains the same: making the content clear. However, concerning the techniques, a certain feature needs to be contemplated. An adequate technique to interpret submarine cables provisions would be putting the actual practice in the arena and interpreting texts according to modern situation. Consideration of the real practice could be further transmitted to add an additional meaning to the existing law and then promote the knowledge between states to ensure unique and reasonable application of

85 M. Fitzmaurice, “Treaty Interpretation; On the Interpretation of Treaties: The Modern International Law as Expressed in the 1969 Vienna Convention on the Law of Treaties”, American Journal of International Law 104, No. 2, 2010, pp. 329-334, p. 331. 86 See, for instance, G. Schwarzenberger, International Law and Order, 1971, London: Stevens & Sons, p. 116; B. Boczek, International Law. A dictionary, 2005, Lanham, Maryland: Scarecrow Press, p. 328; H. Kelsen, Théorie pure du droit/ Pure theory of law, 1962, Paris: Dalloz, p. 462. 294 international law provisions. This can be characterized as a closed circle interpretation concept. Rules originate in practice among end users of law, then in the circumstances of inapplicability of formal means to change international law this practice serves as an interpretation power for already existing rules, and finally these “new” rules with an extended meaning are circulating back to states to promote the efficient application of law between many states ensuring wide geographical representation.

As for the implementation, in the field of public international law, this process signifies proper application of international law provisions into domestic legal orders. A solution proposed in the present work is to unite these two concepts by improving submarine cables legal regime using interpretation for implementation process. It conveys broadening the scope of existing agreements regulating submarine cables by including the actual conduct and practice of all actors involved in submarine cables activities. The solution is intended to look beyond the text of instruments regulating submarine cable and deliver most relevant updates existing nowadays, make the knowledge available for all interested parties, distribute it and promote within states to make the legal regime comprehensive. As Professor Hart asserts, to be able to regulate behavior, a rule “must have some standard instance in which no doubts are felt about its application”87.

To support the solution, a contribution from the soft law may be expected. Suggestions and proposals developed in chapter IX are designed to be non-binding but indicative and efficient in terms of implementation. The more detailed approach is taken and defined, the easier and more uniform the implementation in practice would be. Despite the interpretation is mostly considered to be judges’ prerogative, it can be successfully undertaken by other actors of international law. For instance, by international non-governmental organizations. In the case of submarine cables, it is proposed that provisions to be interpreted in the framework of the ICPC. This institution might take the leading role in applying “interpretation for

87 H. L. A. Hart, “Positivism and the Separation of Law and Morals”, Harvard Law Review, vol. 71, 1958, pp. 593-629, p. 593. 295 implementation” concept. Therefore, an important proposal expressed in the present work is that not only provisions themselves need to be properly interpreted. General rethinking of the legal regime of submarine cables is required. It includes reconsideration of the legal regime’s nature as a hybrid nature. It also includes restructure of the model of governance currently characterized by the absence of regulating authority by promoting active involvement of the ICPC.

The analysis on means to change the existing regime of submarine cables demonstrates that among all formal and informal procedures examined in this chapter, the interpretation appears to be the crucial and most suitable strategy to improve it. A greater flexibility that can be achieved through interpretation conveys that there is less need to amend a treaty formally88. If states follow the same rules of interpretation and apply them in their domestic legislation, the legal regime of submarine cables would change for the better. Therefore, the next chapter is dedicated to concrete formulated recommendations.

88 I. Buga, “Between Stability and Change in the Law of the Sea Convention: Subsequent Practice, Treaty Modification, and Regime Interaction” in D. Rothwell, A. Elferink, K. Scott, T. Stephens The Oxford Handbook of the Law of the Sea, Oxford: Oxford University Press, 2015, pp. 46-68, p. 66. 296

CHAPTER IX IMPROVING THE LEGAL REGIME OF SUBMARINE CABLES

The analysis of imperfections and disadvantages of the legal regulation of submarine cables on different levels was provided in chapter VII. This chapter is dedicated to proposals of developing international law and making submarine cables legal regime better.

A) REINFORCING THE REGIME OF A HYBRID NATURE

This sub-section contains suggestions on changing a model of submarine cables’ regulation taking into consideration the nature of cables and legal relations surrounding them. In concrete, the legal regime of submarine cables needs to be transformed to a hybrid model considering a mixed nature of submarine cables and the variety of involved actors with the strong role of the ICPC in this transformation process.

1. Reaching the balance in submarine cables relations

The new regulation of submarine cables should be cross-sectoral signifying the cables governance in conjunction with other maritime activities. In addition, the aims of submarine cables are to support informational security and stable connections. It requires negotiations with other seabed users such as, fishermen or operators of artificial platforms at sea. However, international cooperation is not universal and resolves itself into cooperation between several subjects in each concrete case. If this cooperation is not successful or subjects cannot reach an agreement the situation remains unclear. To improve this, the following measures can be applied. a. Integrated management of diversified submarine cables activities

There is a variety of actors whose activities take place on the seabed or surrounding waters such as fishing, underwater cultural heritage, or exploration and exploitation of the resources of the seabed that were addressed in detail in chapter VII. To date all sea users act

297 independently with the exception of bilateral negotiations and agreements concerning individual cases. There is no centralized view on how competing activities can be balanced. Cables themselves, data centers, the Internet and cloud services are invisible to most users and thus, less attention is given to them from the part of governments concerning their regulation1. However, the preamble to the UNCLOS notes that parties are “conscious that the problems of ocean space are closely interrelated and need to be considered as a whole”.

A possible solution might be found in integrated management of competing activities where information and technical data about submarine cables is shared with other sea users and with actors conducting various maritime activities. By doing that, they should become aware about planned or existing submarine cables and enter into negotiations if their interests are affected. Feasibly balancing competitive uses of the seabed might be achieved through the ICPC as an authority already having certain reputation among state and non-state actors. A possible form for such changes is weekly or monthly circulars issued by the ICPC containing updates on submarine cables, their coordinates, and possible risks to other users. It is important to implement it in a centralized way through the ICPC given that any information regarding cables is critical and needs to be secure. Only authorized persons from each member of the ICPC shall be entitled to receive this sensitive data and be able to process it.

In areas beyond national jurisdiction measures intended to improve submarine cables legal regime should not be focused only on submarine cables but also cover other seabed activities with the aim to have a comprehensive view on the problem of ocean governance. In particular, providing with case analysis and examples of how two competing activities shall interact with each other in the case of collision would be advantageous. In the international law’s nature,

1 N. Starosielski, “Internet Infrastructure: Where foreign affairs and the climate crisis intersect”, ICPC website, section “Publications”, 2019, pp. available at https://www.iscpc.org/, last visited 01/09/2020. 298 the key factor is the principle of good faith in compliance with international obligations and further implementation to domestic legal system. The more elaborated and detailed norms concerning competing activities international community may create, the better outcome may be received in the future. b. Area-based planning

The area-based planning might be beneficial in the case of submarine cables to reach a balance of using ocean space with other seabed activities. The area-based planning is a planning of ocean space2 with the aim to avoid intersections and disturbance from one activity in relation to another. Taking into consideration that submarine cables activities already intersect with fishing, navigation, deep seabed mining and other marine activities it appears to be a functional measure. Such area-based planning was partially proposed to be achieved between submarine cables activities and deep seabed mining3. However, this synchronization needs to be achieved not only with deep seabed mining but also with many other activities taking place on the seabed and water column. Area-based planning requires preliminary research of existing and planned activities in the area, interdisciplinary approach and appears to be time-consuming process. Therefore, a special department within the ICPC engaged in the area-based planning might become one of the possible solutions. It would help avoiding fragmentations in dividing ocean space between users and facilitate harmonious development of the ocean floor. c. Cable protection areas

Cable protection areas where all other activities are banned to preserve cables functionality might also become a solution. This practice was successfully implemented by several states on their

2 R. Scrimgeour, R. Fletcher, J. Martin, S. Fletcher, A review of area-based planning tools. What is the potential for cross-sectoral planning in areas beyond national jurisdiction?, Cambridge (UK): UN Environment World Conservation Monitoring Centre, 2018, p. 9. 3 Submarine Cables and Deep Seabed Mining…, Technical Study: No. 14, op. cit., p. 6. 299 domestic level as it was provided in chapter VI. However, it needs to receive global implementation following the nature of submarine cables as a global public interest going beyond national boundaries. The concept of cable protection areas might be promoted within the ICPC as a recommendation to be followed by all national governments or used as a measure to be implemented by cable companies in relation to newly installed cables. The main idea is to ensure that irrespective of how such cable protection area is established (by governmental or private sector) it must be respected as confirmed to be an effective measure of submarine cables protection. Currently there is no mechanism that allows establishing cable protection areas in the high seas which would be binding for all states and consequently private actors registered within such states. Therefore, there needs to be a common understanding of the possibility to establish such protection areas. The ICPC may take the leading role in the process. States or cable owners might communicate cable coordinates to interested parties through the ICPC intending to notify all competing activities about submarine cable and at the same ensure safety of such information. Such protection areas shall be periodically reviewed since more cables are constantly laid on the ocean floor. d. Involvement of experience of non-governmental organizations

Various seabed users co-exist and jointly plan their activities in the framework of initiatives taken by non-governmental organizations (NGOs). They bring visible results and contribute to the solution of the law of the sea problems.

An example would be the MarViva project being in the process of implementation since 2002. The project is in operation close to the coasts of Panama and Costa Rica. MarViva project describes itself as:

“the marine conservation reference organization at the sites where it operates. Its work model is based on political advocacy, participatory processes, multi-sectoral partnerships and the use of communication

300

tools to promote policies and standards, raise awareness and foster changes of attitude toward marine issues.”4

Main activities within the project include responsible resource use, control and surveillance activities, the establishment of regulations and standards, and the enhancement of legal procedures5. Marviva project also aims to protect marine areas that help local authorities to monitor and control activities in the protected areas6.

In the area of submarine cables, similar initiatives could be implemented. For instance, independent monitoring and observation of activities taken in the vicinity of submarine cables with the subsequent report to interested states in which maritime zones cables are laid. The preventive measures taken by states as a result of such reports might facilitate the protection of submarine cables.

2. Extending international cooperation

The development of this idea is worth addressing from the theory of “transnational law” implying multi-leveled regulation and defined by Professor Philip Jessup as follows:

“to include all law which regulates actions or events that transcend national frontiers. Both public and private international law are included, as are other rules which do not wholly fit into such standard categories.”7

This theory might be successfully transmitted to the case of submarine cables since submarine cables certainly transcend national frontiers and there is a variety of public, private, and mixed-nature norms constituting submarine cables legal regime. a. Enlargement of submarine cables members’ network

4 MarViva website, section “About us”, available at http://www.marviva.net/en/history, last visited 01/09/2020. 5 Ibid. 6 R. Parmentier, “Role and Impact of International NGOs in Global Ocean Governance”, Ocean Yearbook 26, 2012, pp. 209-229, p. 220. 7 P. Jessup, Transnational law, New Haven: Yale University Press, 1956, p. 2. 301

To apply this theory in practice the proposed solution includes an increase in the participation of private sector and public governance in the legal regime of submarine cables. Governmental or intergovernmental authorities and private sector need to cooperate in developing national and international standards to regulate submarine cables.

This may be achieved through the extension of participation in the ICPC. Governments already meet business within its framework. However, not all states parties to the UNCLOS are members of the ICPC or participate in its activities by other means. The solution might be to extend promotion of the cooperation between states and the ICPC by admitting more members to the ICPC both from public and private sectors. This may be reached by accumulating various interests and attracting attention to cables problems from participants engaged in submarine cables activities, lowering annual fees for members encountering difficulties in paying them, and extending the network of meetings and conferences where decisions are made. More voices from different perspectives need to be heard to produce guidelines to be followed by all participants. Generally, the governance model should be equally divided between public and private actors. In this sense, the ICPC recommendations and instruments would influence implementation of the UNCLOS, relevant treaties and other instruments in domestic law of states. b. Neutralization of submarine cables

Finally, a suggestion that might facilitate the development of the submarine cables regime as a hybrid regime would be a proposal to consider submarine cables as a neutral object. In other words, the concept of neutralization of submarine cables is concerned. The idea of such proposal does not fall under the scope of the law of war but constitutes a judicial fiction where all submarine cables are considered not as a summary of private property owned by various companies but as a whole neutral object passing through numerous maritime zones and serving for the benefit of mankind. To specify further, submarine cables need to receive a status of a concept in international law, a set expression to be closely associated with their

302 purpose to serve the mankind without concrete ownership, contractual and legal arrangements behind.

Objects such as the Moon and other celestial bodies or Antarctica are already recognized in legal scholarship as “global commons”8. However, cables are not included in this notion. The existing definition of “global commons” by the UNEP defines them as “resource domains or areas that lie outside of the potential reach of any one nation state“.9 Similar notion, “global public goods” is defined as “outcomes (or intermediate products) that tend towards universality in the sense that they benefit all countries, population groups, and generations”10. These characteristics are inherent to submarine cables. However, they cannot be included in the scope of these definitions.

Therefore, an alternative concept of neutralization of submarine cables might be employed. A consideration of submarine cables as a neutral object might raise an awareness between states that excessive environmental, procedural or other requirements (addressed as overregulation deficiencies in chapter VII) complicate the process of laying and maintenance of submarine cables that shall be out of political and legal formalities. This measure might help to urge states to revise domestic laws on submarine cables that in the majority of cases have not been revised and amended since the time adopted. This, however, is not possible without changes of the global governance model of submarine cables and the active role of the ICPC as it is specified further.

8 S. Cogolati, J. Wouters, The Commons and…, op. cit., p. 14. 9 United Nations Environmental Program, “IEG of the Global Commons”, available at http://staging.unep.org/delc/ GlobalCommons/tabid/54404/Default.aspx, last visited 01/09/2020. 10 I. Kaul, I. Grunberg, M. Stern, “Defining Global Public Goods” in I. Kaul, I. Grunberg, M. Stern (eds.) Global Public Goods: International Cooperation in the 21st Century. New York: Oxford University Press, 1999, pp. 2-19, p. 16. 303

с. Guarantee of uninterruptable work of submarine cables

Another measure of enhancing cooperation in relation to submarine cables might be an extended interpretation of Articles 5811 and 7912 of the UNCLOS. In particular, in relation to duties of states regarding the prohibition to restrict and limit the operation of submarine cables in the case of suspension of diplomatic relations or sanctions to avoid generating obstacles for communications that constitute, as it was addressed in chapter II, a global public interest. Although the history knows cases of limiting essential connection services13, the modern world cannot allow cuts in communications. Especially in extraordinary situations such as, for instance, the global pandemic generated by the covid-19 occurred in the beginning of 2020. Telecommunications services became extremely important to support global economy, working relations, transactions, and remote interaction in the circumstances of a quarantine and restricted physical mobility in the majority of countries.

3. Enhancing submarine cables security

Submarine cables as a critical but vulnerable infrastructure deserve adequate protective measures to ensure their stable work and security. a. Proper management of cable coordinates

A suggestion to ensure submarine cables’ security would start with the necessity of adequate consideration of cable coordinates and

11 Concerning rights and duties of other states in the exclusive economic zone. 12 Concerning submarine cables and pipelines on the continental shelf. 13 The International Telegraph Convention, adopted 17 of May 1865, British and Foreign State Papers, vol. 56, p. 294, for instance, protected “the rights of belligerents when each party was allowed to control the transmission of telegrams through its territory and to exclude those which might pose a threat to State security, and - when it deemed necessary and provided it inform other signatories - to suspend international telegraph service for a designated time”. See D. Howland, “The limits of international agreement: Belligerent rights vs. submarine cable security in the nineteenth century”, 2017, Jus Gentium: Journal of International Legal History, vol. 2(1), pp. 67-92, p. 79. 304 location. Currently it remains to be an open access data that can be inappropriately used14.

To ensure security of submarine cables it might be beneficial to revise who keeps the cable data and how it is shared. Once more, the ICPC may take the role of a coordinating center working as a neutral administrator when all cable companies are required to notify about new cables coordinates and actualize coordinates of already exiting cables. When another activity is planned in the vicinity, the one who intends to cross already existing cable shall turn to the ICPC for required information. The ICPC in these circumstances might supervise that the data is shared only with verified official representative and only in the amount that is required. Typical non- disclosure agreements might also be an effective tool to be elaborated in the framework of the ICPC. b. Amplifying the meaning of certain notions

One more possible solution would be to clearly define esential notions utilized in practice.

1) Break or injury to submarine cables

For instance, to formulate the criteria of what constitutes an offence of a break or injure to submarine cables contained in Article 113 of the UNCLOS. Addressing break or injury of a submarine cable or pipeline might be interpreted broadly. Some suggestions were already made by legal scholars including but not limited to the criteria to qualify damage to submarine cables as follows: clearly defined offence; requisite intention such as negligence, recklessness or intentional action; application in maritime zones outside territorial sovereignty; adequate penalty proportionate to the offence.”15 These

14 R. Sunak, “Undersea Cables…”, op. cit., p. 26. 15 T. Davenport, “The Criminalization of Damage to Submarine Cables: Problems and Prospects”, A Sea Change: Securing Submarine Cables in the Modern World, Annual Plenary Meeting of the International Cable Protection Committee, Lisbon, 2012, pp. 1-34, p. 5. 305 elements might be further developed to formulate the definition and wide interpretation of Article 113 in the framework of the ICPC.

2) Terrorism threat

Another suggestion is that Article 113 of the UNCLOS is also not suitable to address intentional damage to submarine cables by terrorists. It does not give states the right to arrest foreign vessels suspected in intentional damage to cables in the exclusive economic zone or in the high seas or inspect relevant documents of such vessels16. In situations when circumstances reasonably allow believing that terrorist attacks may occur in relation to submarine cables, military vessels should have the right to stop ships and at least require their identity documents. This understanding should be considered and promoted within the international community. A special protocol or guidelines with detailed instructions how to act when a vessel is detained and inspected might facilitate the procedure.

3) Reasonable measures

The interpretation of a notion “reasonable measures” might also be further developed. Provided that the category of “reasonable measures” is not well defined in practice, coastal states may misuse this concept and take advantage of it for their own purposes. A coastal state appears to be in a more favorable condition as it always has a choice whether to allow or prohibit other states to lay submarine cables. There could be political and economic factors influencing such decision as well as coastal states’ own plans for its continental shelf. “Reasonable measures” is a category that is easy and flexible to adapt for own needs of a coastal state. Therefore, concrete cases when reasonable measures would be considered reasonable need to be specified, for instance, in the form of examples using state A and state B description model. These might be, among others, measures to protect environmentally sensitive

16 Ibid, pp. 29-30. 306 areas (reefs, corals, algae, et cetera); or areas reserved for the exploitation of hydrocarbons17; marine sanctuaries; areas reserved for fishing (especially by indigenous people as their traditional way of living); areas where shipwrecks are located. The full list of recommendations might be developed in the scope of the ICPC.

4) Conditions in relation to cables laid on the continental shelf

Interpretation is also required in relation to Article 79 (4) of the UNCLOS. It emphasizes the right of a coastal state to establish conditions for cables entering its territory or territorial sea. However, it does not clarify whether these conditions may only be established with regard to the part of the cable located in its territorial sea, or also to the part located on the continental shelf. The author adheres to the opinion that a coastal state may apply its domestic law to submarine cables entering both areas, the territorial sea and continental shelf. State practice of New Zealand18, People’s Republic of China19, Denmark20 and Iceland21 confirms this statement. Therefore, the idea of interpretation for better implementation proposed in this work is confirmed hereby as a necessity to deliver this method of interpretation to other states to shape uniform implementation worldwide. c. Responsibility for cyber espionage by means of submarine cables

In the modern world several occasions confirmed that telecommunications technologies can be misused. For instance, some sources affirm that the United States was employing submarine

17 Y. Van Logchem, “Submarine Telecommunications Cables…”, op.cit., p. 109. 18 See Submarine Cables and Pipelines Protection, Act No. 22, op.cit., sections 11, 7 and 2. 19 See Regulations of the Protection of Submarine Cables and Pipelines, Order No. 24, op. cit., Articles 2 and 8. 20 Act on Safety at Sea (Lov om Sikkerhed til Søs), Consolidated Act no. 72, op. cit., Part 1, section 1, subsection 3; Part 3, section 6. 21 See Act On Marine And Coastal Antipollution…, No. 33, op. cit., Articles 2 and 6. 307 cables for eavesdropping on the phone calls and emails of the entire world22. Participation in cyber-attacks intended to influence nuclear technology of Iran is also attributed to the United States in the light of improper use of communications channels23. Thus, the threat of misusing submarine cables for this purpose also needs to find a reflection in the new submarine cables regime.

1) Submarine cables immunity

The first suggestion would be to properly apply international law to cyber-operations committed by means of submarine cables. International law experts have already tried to address this affair in the Tallinn Manual 2.024, a study emphasizing how international law applies to cyber environment. Rule 32 of the Tallinn Manual provides that “although peacetime cyber espionage by States does not per se violate international law, the method by which it is carried out might do so.” The authors propose to look at provisions of the UNCLOS and other conventions to evaluate if cyber espionage against submarine cables would be prohibited or restricted.

It appears that submarine cables do not enjoy sovereign immunity in contrast to, for instance, warships and submarines25. In this case, rules and principles of international law shall apply26. Any cable, state-owned, privately-owned, or having a mixed nature as addressed in chapter II shall be covered by this. Even without reference to the rules of jus ad bellum the legal experts decided that damage to submarine cables would be prohibited as a matter of customary

22 D. Marcella, “International Law and Practice in Times of Change”, Washington University Global Studies Law Review, vol. 13, Issue 3, 2014, pp. 453-467, p. 458. 23 Ibid. 24 M. N. Schmitt, Tallinn Manual 2.0 on the international law applicable to cyber operations, New York: Cambridge University Press, 2017. 25 As stated in Rule 5 of the Tallinn Manual, warships and ships owned or operated by a state and used only for government non-commercial service, state aircraft, and persons or objects on such vessels or aircraft enjoy sovereign immunity. M. N. Schmitt, Tallinn Manual 2.0…, op. cit., pp. 27-28, commentary para. 1. 26 M. N. Schmitt, Tallinn Manual 2.0…, op. cit., Rule 54, p. 252. 308 international law27. However, it conveys that during the armed conflict submarine cables might become a legitimate target. The author suggests that immunity of submarine cables shall extend to both peaceful time and armed conflicts due to the critical importance of submarine cables as addressed in chapter II. For this purpose, a common interpretation of submarine cables immunity on a basis similar to Article 95 of the UNCLOS (immunity of warships) is required. Tallinn Manual also supports that physical connection to a submarine cable in order to collect data transmitted by it would constitute a violation of a state’s sovereignty if such connection was done in that state’s territorial sea or archipelagic waters28.

2) Submarine cables crossings

A due consideration must also be given to the situation of cable crossings when cables (or cables and pipelines) are crossed at the same location. It serves as a good example of the variety of interests surrounding submarine cables relations given that two cable companies, as well as lenders and insurance providers have direct interests in the affair. Under the UNCLOS the right to lay cables or pipelines does not require consent from a cable owner whose cable is already in place on the seabed. However, the recognized obligation to enter into crossing agreement to settle mutual rights and obligations of a crossed and crossing party appears to be advantageous for the improved submarine cables legal regime. Some parties already enter into such crossing agreements29. Thus, it needs to be promoted to apply universally. The language of crossing agreements is worth making more specific and detailed than general provisions of the UNCLOS. A standard form of crossing agreement might be elaborated in the framework of the ICPC specifying such aspects as, for instance, cooperation before, during and after works

27 Ibid, p. 256. 28 Ibid, Rule 4, p. 31. 29 L. O. Askheim, “Commercial Arrangements and Liability for Crossing Pipelines, Power Cables and Telecom Cables (Connectors) on the Seabed” in C. Banet, The Law of the Seabed. Access, Uses, and Protection of Seabed Resources, Leiden: Brill |Nijhoff, 2020, pp. 553-571, p. 561. 309 on laying submarine cables, the liability for causing damage to already existing cables and insurance requirements.

B) MAKING INSTITUTIONAL ARRANGEMENTS

There is an existing necessity of an authority to regulate submarine cables issues on international level provided that none of organizations addressed in chapter II has taken the leading role to become submarine cables authority. As it was recognized by the UN, submarine cables appear to be nearly the only area in the law of the sea that does not possess its own regulative body30. Therefore, it is essential to address how this institution should be organized, what might comprise its competence and how it may be integrated to the current system of international organizations.

1. Rethinking the status of the ICPC in international law

The current role and status of the ICPC is comprehensively analyzed in chapter II. The brief summary would be that the ICPC is not an international organization (the intergovernmental organization in the sense of Article 1 (i) of the Vienna Convention on the Law of Treaties) although its functions are overly similar and its role in the legal regime of submarine cables is essential considering its activities. Thus, its status is correctly to be considered as of the NGO without state participation in its establishment31. In this sub-section, several suggestions on changing the status of the ICPC as the main actor in the legal regime of submarine cable are examined. a. Extending the ICPC mandate in regulating submarine cables

When several international organizations are involved in the regulation of the same issue, there is a risk of fragmentation of international law. In the case of submarine cables, the ICPC is the sole authority especially dealing with submarine cables. That conveys

30 R. Scrimgeour, R. Fletcher, J. Martin, S. Fletcher, A review of area-based planning tools…, op. cit., p. 7. 31 A. Shamima, D. Potter, NGOs in international politics, Bloomfield: Kumarian Press, 2006, p. 55. 310 that its policy and recommendations are homogeneous and consistent since issued by the same institution32.

However, as the ICPC emphasizes it:

“does not develop standards and will in no circumstances give an interpretation of a Recommendation in the name of the ICPC. ICPC and its members do not accept any liability for any errors in the Recommendation or for any consequences resulting from its use as a planning guide”33.

Therefore, it would be profitable to make the ICPC’s legal power stronger with a mandate to issue binding recommendations and standards to be followed by the ICPC members. A similar system exists, for instance, in the Internet Corporation for Assigned Names and Numbers (ICANN), a private, non-profit organization based in Los Angeles, United States34. It is responsible for managing the Internet including such critical issues as the domain name system and assignment of Internet Protocols35. The method by which this institution empowers its regulation is through the system of contracts. Such contracts concerning domain name systems are concluded between any stakeholder in the world and the ICANN. In particular with companies and organizations administering domain names on all levels (including such top-level domains as .com and .org) as well as with hundreds of companies and organizations titled registrars responsible for registering customers’ domain names. Since

32 This statement might not be always correct and even documents issued by the same authority may contain contradictory information. However, after the detailed analysis of the ICPC’s documents this practice was not identified in the case of submarine cables. 33 Management of Redundant and Out-of-Service Cables…, op. cit., The same wording is contained in any other recommendation issued by the ICPC the quantity of which as of 1st of September 2020 amounts to 18. 34 It is worth mentioning that the ICANN was created by the United States government. However, later it was privatized and currently appears to be a private company. See more in J. Ibàñez, El control de internet, Madrid: Catarata, 2005, p. 115. 35 See website of the ICANN, section “About ICANN”, available at https://www.icann.org/resources/pages/welcome-2012-02-25-en, last visited 01/09/2020. 311 contracts are binding on parties this legal technique ensures enforcement of the ICANN’s rules and policies incorporated into contract and by this makes them binding. A compliance mechanism also exists within the ICANN to support conformity with contracts and to investigate failures to respect legal obligations. It appears to be advantageous to consider a similar system in the scope of the ICPC. Members of the ICPC could, for instance, agree with the ICPC to recognize a mandatory character of its already existing recommendations through the system of contracts. Some restructuration of the ICPC and inclusion of the contract office and compliance department might also be needed to cover and maintain this arrangement.

Thus, it appears to be beneficial to rethink the status of the ICPC and promote it within the international community and to reevaluate the legal nature of recommendations issued by it in international law. b. Amplifying geographical representation

A further suggestion would be to shift the ICPC’s focus from the European and the United States area. Currently most of its members are government authorities or private companies coming from these geographical areas and the worldwide extension appears to be advantageous. Increasing the representation and including more national legislation into the ICPC’s database would help other cable owners and maritime users to know more about national requirements of each state. In addition, more data on national implementation of international law would permit conducting a broader comparative analysis to distinguish best practices and apply them worldwide.

In addition, for the purpose of expanding the ICPC’s presence in the legal regime of submarine cables it is beneficial to closely cooperate with national governments convincing them to provide relevant information, translated legislation, and to attract new participants increasing the quantity of active members and observers. c. Recognizing the legal personality of the ICPC

312

Despite the private nature, the objectives of NGOs such as the ICPC are mostly public in nature. Therefore, there should be a correlation between the nature of non-governmental organizations and their functions.

1) Enhancing the role of NGOs

NGO’s personality in international law requires their consideration as specific subjects having not only rights but legal duties. Some legal scholars express the view that this issue shall be regulated by a Code of Conduct for NGOs 36. However, given the absence of such Code of Conduct in current international law, this sub-section is focused on rethinking the status of NGOs although international agreement listing the rights and duties for NGOs would further strengthen their position in international law-making process.37 Transforming the ICPC into a new regulatory body would require recognizing its status as de-facto international organization having connections with regional organizations.

The ICPC is rarely mentioned in the matters of the development of the law of the sea concerning submarine cables. At the same time, its activity starts getting attention as a new emerging legal order within the law of the sea. The actual competence expressed by the ICPC can be described as public powers exercised by the private entity38.

Advantages of participation of NGOs in international law are undeniable. They are fast and flexible in reaction to changes, influence the enforcement of international norms and standards and facilitate introducing them into legislation at local, national, and

36 K. Nowrot, “Legal Consequences of Globalization: The Status of Non- Governmental Organizations under International Law”, Indiana Journal of Global Legal Studies, vol. 6, No. 2, 1999, pp. 579-646, p. 614. 37 Ibid, p. 595. 38 E. Hey, “Reviewing implementation of the LOS Convention and emerging international public law” in A. Elferink (eds.), Stability and change in the law of the sea: the role of the LOS Convention, Leiden/Boston: Martinus Nijhoff Publishers, 2005, pp. 75–88, p. 81; D. Freestone, A. Elferink, “Flexibility and innovation in the law of the sea…”, op. cit., p. 169. 313 international levels. Furthermore, their levers and tools of influence are sometimes sophisticated but bring valuable results. For instance, they may use media to reveal state’s violation of international legal norms or report the abuse of powers to relevant monitoring bodies in the domestic system or relevant international supervisory bodies39. Another positive perspective is that NGOs often organize events, conferences and promote their activity through different means such as publications, Internet communications, social networks, and documentaries40.

The proposal on how to improve submarine cables legal regime concerning the status of NGOs is to consider them equally with international organizations and grant the same legal personality to NGOs. In particular, to the ICPC. It appears that gradually the role and activities of NGOs started being considered as not less important than the activity of international organizations. However, the international community nevertheless tends to consider them as secondary actors of international law without giving them due regard.

It is still far from affirming that states are ready to cooperate with NGOs at the same level they do in the framework of international organizations. The main obstacle in changing the status of NGOs is the reluctance of states to share their powers with other actors in international law41. Although the ICPC implements provisions of the UNCLOS and other international agreements in practice and, de facto, creates a new legal order for submarine cables, states do not desire to recognize its activities and not ready to consider it equally with international organizations. Despite NGOs’ use of non- standard methods and development of non-binding instruments the nature and value of these instruments, as well as the status of NGOs

39 M. H. Zarei, A. Safari, “The Status of Non-State Actors under the International Rule of Law: A Search for Global Justice”, Rethinking International Law and Justice journal, vol. 233, 2015, pp. 1-25, p. 9. 40 R. Parmentier, “Role and Impact of International NGOs…”, op. cit., p. 213. 41 M. H. Zarei, A. Safari, “The Status of Non-State Actors…”, op. cit., p. 5. 314 is similar to international organizations. Thus, it should be reevaluated in the international law and recognized as an effective way of its development. This process will certainly take time and thus, cannot be considered as an effective way to change submarine cables legal regime in the recent future.

2) Considering the ICPC as an actor of international law

If the ICPC was an international organization and participated in the UNCLOS42, it would be able to propose amendments relating to submarine cables. The ICPC has competence over a subject matter and only those international organizations having competence over a subject could propose relevant amendments43. In the absence of an international authority being responsible for submarine cables as it was previously discussed currently, no international organization is capable to properly initiate amendments relating to submarine cables.

In addition, the international organization’s functions are not stagnant and continuously develop with the time and activity of the organization. Should the ICPC be an international organization, its regulatory powers may evolve that is an advantage in the constantly developing submarine cables industry. The ICJ has once confirmed it in one of its advisory opinions. It concluded that the organization enjoys powers:

“which, though not expressly provided in the Charter [of the United Nations], are conferred upon it by necessary implication as being essential to the performance of its duties”44.

42 Annex IX of the UNCLOS gives the right to international organizations to participate in the UNCLOS defining the international organization as “an intergovernmental organization constituted by States to which its member States have transferred competence over matters governed by this Convention, including the competence to enter into treaties in respect of those matters”. Therefore, only intergovernmental organizations can participate in the UNCLOS and NGOs are not able to do it. 43 M. Nordquist, S. Nandan, S. Rosenne, (eds.), The United Nations Convention on the Law of the Sea…, vol. V, op. cit., p. 278. 44 Reparations for Inquiries Suffered in the Service of the UN (Advisory Opinion), 1949, ICJ Rep 174, 182. 315

The activity of international organizations becomes wider than anticipated by its constitutive document since it accumulates new functions and extends its regulatory powers. On the one hand, it might be negatively evaluated and considered as an uncontrollable process of gaining new powers and the breach of principle of special competence of international organizations45. It also opens the possibility of misuse and overregulation. On the other hand, such extension facilitates regulating newly arising issues and contributes to the progress development of international law. Therefore, international organizations adapt themselves to be ready to respond to changing circumstances. In the case of the ICPC its recommendations and guidelines appear to be reasonable and do not go beyond issues that require regulation in practice.

So far there are no precedents of an NGO becoming an international organization and it remains unclear whether it is possible under international law. In contrast to domestic law of most states, it is not possible to change the organizational form of an international institution similarly to a change of an organizational form of one legal entity to another46. One of the possible reasons against such conversion might be the initial idea of an NGO to be independent from states and thus, the reluctance of changing the status to the one requiring states participation in the constituent document. Also, since the status of an NGO is not decisively established in international law47, it is not clear whether the international community would welcome this change. The possibility that the ICPC would become the first precedent of making this institutional

45 Legality of the Use by a State of Nuclear Weapons in Armed Conflict, Advisory Opinion, I. C. J. Reports 1996, p. 66, paragraph 25, available at https://www.icj- cij.org/files/case-related/93/093-19960708-ADV-01-00-EN.pdf, last visited 01/09/2020. 46 For instance, to convert a limited liability company to a corporation under California law. See website of the California Secretary of State available at https://www.sos.ca.gov/business-programs/business-entities/conversion- information/, last visited 01/09/2020. 47 R. Ben-Ari, The Legal Status of International Non-Governmental Organizations. Analysis of Past and Present Initiatives (1912-2012), Leiden: Martinus Nijhoff Publishers, 2013, p. 48. 316 change is utterly small. Thus, the role of the ICPC as a non-standard way of development of the law of the sea and legal regime of submarine cables should be considered with special importance. In particular, it is worth examining another procedure of rethinking the status of the ICPC such as to contemplate NGOs as fully functional actors of international law.

2. Establishing regional authorities responsible for submarine cables48

A new structure of governance might be constituted in the context of submarine cables: the ICPC as a leading organization exercising “a supervision of the actions of non-governmental organizations in a certain geographical region or field of activities” 49 by possessing a status of self-governed umbrella organization as suggested below. a. ICPC as an umbrella organization

The UNCLOS mentions several mechanisms differentiating from formal amendment or modification. Article 211 provides that “competent international organizations or general diplomatic conference” can “establish international rules and standards”. Article 65 mentions that states shall work “through the appropriate international organizations”. However, there is a lack of an international organization responsible for submarine cables that appears to be one of the complex disadvantages of the legal regime of submarine cables under international law50. This tendency is followed by domestic legal systems where a special authority designed for dealing with submarine cables rarely exists.

48 This sub-section is based on the author’s publication: D. Shvets, The Legal Regime of Submarine Telecommunications Cables in the Arctic: Present State and Challenges” in Digitalisation and Human Security—A Multi-Disciplinary Approach to Cybersecurity in the European High North, edited by M. Salminen, G. Zojer, and K. Hossain, Cham: Palgrave Macmillan, pp. 175-203. 49 K. Nowrot, “Legal Consequences of Globalization…”, op. cit., p. 641. 50 R. J. Rapp, Submarine Cables: Critical Infrastructure Supplier Perspective, United States Interests in Prompt Adherence to the Law of the Sea Convention, The 34th Annual COLP Conference, 2010, pp. 1-21, p. 18, available at https://docplayer.net/8835367-Submarine-cables-critical-infrastructure-supplier- perspective.html, last visited 01/09/2020. 317

The improvement of the legal regime of submarine cables through the idea of an umbrella organization suggests an extension of the scope of regulation, involvement of more cable industry actors in the process of drafting and subsequent control, and making professional industry actors more familiar with such regulation.

The ICPC may be assigned a role of an umbrella organization in the area of submarine cables and continue collecting materials and proposing solutions for technical and legal problems. Non- governmental organizations violating international legal standards could by then encounter penalties from an umbrella organization and exclusion from future concerted actions. Such umbrella organization could, for example, recommend international development banks not to include certain non-governmental organizations in future development programs. In the framework of the ICPC similar program of actions is considered to be beneficial.

Apart from the ICPC, there are several regional cable committees performing the same functions on the local level. Examples include Subsea Cables UK, Oceania Submarine Cables Association, the Danish Cable Protection Committee51. These regional cable protection committees cover different areas worldwide, but as an example to this sub-section, it is worth examining the area where no such regional committee exists and to consider whether the cooperation of the ICPC with regional organizations could improve the legal regime of submarine cables. The Arctic region would serve as such an example. b. Case study: the Arctic region

In the realities of the Arctic an exclusive authority created for issuing recommendations, guidelines, or best practices on laying and maintaining submarine cables in this region would be a big step in the development of telecommunications infrastructure. The Task

51 D. Burnett, R. Beckman, T. Davenport, Submarine Cables: The Handbook…, op. cit., p. 10. 318

Force on Telecommunications Infrastructure in the Arctic (TFTIA)52 was established to develop and further advice the Arctic Council on the issues of development of telecommunications. To date no document explicitly addressing legal matters of submarine cables has been issued by it. However, addressing legal issues through a specifically authorized and established body would facilitate the development of cable projects in the Arctic and make them even more attractive.

In the scope of the governance model of umbrella organization represented by the ICPC and regional cable committies, there is no need to radically change the system of governance in the Arctic and to create a new separate authority. The TFTIA could take this role of regional Arctic cable organization and contribute to the development of this issue. In cooperation with Arctic states that can provide with up to date and translated legislation presented comprehensively, the TFTIA could create recommendations on the legal regime of submarine cables in different maritime zones of the Arctic states. The ICPC has already attempted to collect national legislation in its Members’ Database. However, this initiative does not cover all Arctic states. Furthermore, not all the documentation is translated into English, and finally, the access to this database is limited. The initiative of creating regional and more detailed Arctic collection of domestic laws within the TFTIA would facilitate the development of submarine cables projects in the north and make it easier for the private sector. It may become a reality in the framework of a leading regional authority responsible for submarine cables issues. The possibility to avoid delays due to a limited knowledge, and faster negotiations on the universal level in the case of damage to cables, are only a few of the advantages that would come from developing this initiative.

Nevertheless, some obstacles may arise in the course of implementation of this initiative. States are rather reluctant to any

52 Arctic Council website, Task Force on Telecommunications Infrastructure in the Arctic (TFTIA), available at https://arctic-council.org/index.php/en/task- forces/342-tftia, last visited 01/09/2020. 319 changes relating to submarine cables due to the lack of knowledge of their importance. The Arctic could become an exception given that cables appeared there relatively recently and new projects are coming where states already expressed their interest and recognize cables as a critical infrastructure53. From the very beginning submarine cables in the Arctic were promoted as having the value and significance although it is not the case in other parts of the world. Also, the legal status of such regional authorities as the TFTIA is not entirely clear provided that there is no established international law model of such committees with non-binding powers. When there is a lack of information, the international community prefers to stay away in order not to create a precedent which might be ambiguously evaluated in the future. Finally, the Arctic Council is an international organization, and its members are states in contrast to regional cable committees mentioned earlier. Since the TFTIA already exists in the framework of the Arctic Council, it might be difficult to establish the alternative non-governmental authority due to the overlapping competence.

3. Extending the ICPC coordination with existing international organizations

As it was suggested in previous sub-section if the ICPC to be considered as a competent authority having the rights and duties similar to an international organization, it needs to interact with other international organizations and establish mutual connections. It might be achieved by obtaining an observer status or by coordinating actions with other international organizations. a. Observer status in international organizations

Observer/consultant status of the ICPC is considered as possible solution to improve submarine cables legal regime. It is relatively

53 For instance, Finland evaluated the Arctic Connect Project as a critical infrastructure. See N. Bannerman, “Connecting beneath the ice” Capacity, vol. 18, Issue 5, 2018, pp. 36-38, p. 38, available at http://edition.pagesuite- professional.co.uk/html5/reader/production/default.aspx?pubname=&edid=7fa9 76b8-a5af-4cbb-9058-a95f627e8119&pnum=40, last visited 01/09/2020.

320 common practice in international law when NGOs have such status in international organizations. Within the UN, for instance, the United Nations Economic and Social Council (ECOSOC) implies participation of NGOs with the possibility of granting consultative status54. Although the ICPC is incorporated in the United Kingdom its scope of operation extends beyond national borders and an observer/consultant status has a good potential as an effective measure.

The ICPC may apply for observer/consultant status in international organizations having partial competence in regulating submarine cables addressed in chapter II. First, the ITU welcomes new members with different nature such as states, companies, universities, and international and regional organizations55 and the ICPC meets requirements to join it. The IMO also grants consultative status to non-governmental organizations56. The ISA gives observer status to both intergovernmental and non- governmental organizations57. The CLCS due to the specificity of its activity does not imply observer status.

There are several advantages for both the ICPC and above- mentioned international organizations in obtaining the observer status by the ICPC.

First, the ICPC might be involved and follow all updates, recent information and knowledge about these international organizations’ activities and thus, may better coordinate its own activity.

54 UN website, section “How to apply for consultative status with ECOSOC?”, available at https://www.un.org/development/desa/dspd/civil-society/ecosoc- status.html, last visited 01/09/2020. 55 ITU website, section “Join ITU”, available at https://www.itu.int/en/join/Pages/default.aspx, last visited 01/09/2020. 56 IMO website, section “Non-Governmental international Organizations which have been granted consultative status with IMO”, available at http://www.imo.org/en/About/Membership/Pages/NGOsInConsultativeStatus. aspx, last visited 01/09/2020. 57 ISA website, section “Observers”, available at https://www.isa.org.jm/observers, last visited 01/09/2020. 321

Second, although restricted to vote, normally observers have the right to speak during sessions and participate in preparing an agenda before meetings. The ICPC may transmit new ideas to raise the awareness of submarine cables and visibility of problems of their legal regulation.

Third, the ICPC may be consulted by these organizations as a special authority whose main area of work is submarine cables. Based on research and further reports more balanced and comprehensive decisions may be taken. Organizing side events along with those regularly taking place under the aegis of international organization promoting the necessity of legal regulation of submarine cables might also be one of the scenarios of future development.

Finally, to facilitate the implementation of the idea of having an observer status by the ICPC, free of charge relations may be an option with indemnification of the ICPC from fees for all activities within these organizations (presence at all sessions and meetings, access to working documents, contacts with staff to receive consultations, participation in working groups, projects proposals, provision of experts, et cetera.)

The main idea of granting observer status by any international organization is that observers should contribute to its work. In the case of the ICPC as a specialized authority in submarine cables, its participation may bring scientific and other expertise.

Apart from having an observer status agreement the model of individual partnership agreement with international organizations may also be considered as a solution as in the case of an NGO the International Cooperative Alliance58. Another alternative would be cooperation agreements with international organizations59. Except

58 International Cooperative Alliance website, section “Global Advocacy”, available at https://www.ica.coop/en/our-work/global-advocacy, last visited 01/09/2020. 59 There are some examples of such cooperation implemented in practice. See, for instance, Cooperation Agreement Between the United Nations and the Inter- 322 for observer status they provide interactions between parties in such areas as joint actions, technical cooperation, exchange of information and documents.

It appears to be a good practice and an effective tool to have an observer status and maintain partnership relations with international organizations to achieve common goals. The ICPC lacks this partnership perspective and it would be advantageous to reach it. b. Presence in the United Nations

Apart from presence in international organizations where some of them are specialized agencies of the UN, there also might be a place for direct presence of the ICPC in the UN. For instance, a representation in the Internet Governance Forum (IGF), a forum established under the auspices of the UN. It has “the legitimacy derived from its link to the Secretary-General of the UN as its convenor”60. This forum does not produce any decisions to be bound for state members of the UN but generates ideas and brings together policy initiatives to be implemented by other institutions on international and domestic levels such as, for instance, national authorities. Yet the IGF has not produced any significant outcome resulting from its discussions although its mandate is being prolonged continuously and meetings are held every year.

Notwithstanding the nature and absence of a regulating power of the IGF, some international organizations such as ICANN, UNESCO and even the ITU are present in its sessions and participate in its activities61. The ICPC could also consider the presence in the IGF especially taking into consideration that submarine cables are

Parliamentary Union, available at https://master-7rqtwti-gcaqeen3me7bi.eu- 2.platformsh.site/file/2457/download?token=slvtLrQc, last visited 01/09/2020. 60 IGF website, section “About”/background paper, available at https://www.intgovforum.org/cms/2015/IGF.24.06.2015.pdf, last visited 01/09/2020. 61 Ibid. 323 discussed from time to time within the forum62. By its presence, the ICPC could at least raise awareness about deficiencies existing in relation to submarine cables and to increase their visibility. It makes greater number of subjects familiar with the issue and increases chances for initiatives in better governance. So far, the ICPC did not send its representatives to take part in the IGF63. Although the Internet is only one aspect of the ICPC’s work in relation to telecommunications cables it plays an important role and collaboration with other interested actors would be beneficial. c. Coordination of actions with states

Lately NGOs start entering into international agreements with states directly avoiding any intermediary procedures64. It might be considered as further indication of their growing legal status under international law. Several examples on developing NGO-state relations are in progress now and demonstrate increasing interest in this tendency.

The first example would be the Caucus of Development NGO Networks (CODE-NGO) setting the goal to “scale up NGO impact on national development” and uniting one thousand six hundred NGOs in Philippines65. Its main purpose was to develop an

62 See, for example, a session on the future of Internet governance; submarine cables and global interconnectivity discussed at the Twelfth Annual Meeting of the IGF in Geneva, Switzerland, from 17 to 21 December 2017, available at https://www.intgovforum.org/multilingual/content/igf-2017-day-2-room-xii- ws128-the-future-of-internet-governance-submarine-cables-and-global, last visited 01/09/2020. Additionally, see a discussion about submarine cables governance and sustainable development goals on the Thirteenth Annual Meeting of the IGF in Paris, France, from 12 to 14 November 2018, WS193 available at https://www.intgovforum.org/multilingual/content/igf-2018-day-1-salle-iii- ws193-submarine-cables-governance-sustainable-development-goals, last visited 01/09/2020. 63 Based on the search by key words “Internet Governance Forum” on the ICPC website where no mention of the forum appears in the results. 64 K. Nowrot, “Legal Consequences of Globalization…”, op. cit., p. 634. 65 Caucus of Development NGO Networks website, section “History”, available at https://code-ngo.org/history/, last visited 01/09/2020. 324 agreement among its members to adopt a Code of Ethics for Social Development Organizations, entailing standards on how NGOs relate toward the government and to each other. Currently the version of this Code of Ethics is constantly updated and seeks implementation from members and the government for the purpose of ensuring influence in public policy formulation, programming, and implementation66.

The second example would be the activity of InterAction, the largest alliance of international NGOs and partners in the United States mobilizing one hundred and eighty-plus members67. Among the aims of InterAction are revolutionizing and adapting NGOs to respond more effectively to changing global landscape including advocacy for the policy priorities primarily with the United States Congress and with the executive branch of the United States government68. For instance, they negotiate questions relating to the budget allocated to United States’ foreign assistance to end the poverty globally69. A partner of InterAction, also an NGO titled International Medical Corps coordinated its efforts with the Federal Emergency Management Agency, the Department of Health and the Puerto Rico Emergency Management Agency in the circumstances of hurricane Dorian that took place in August 201970. These two examples demonstrate that NGOs can interact with national administrations, enter into agreements with governments and as a result effectively resolve arising problems.

Another example would be the National Telecommunications and Information Administration of the United States where the

66 Ibid, section “What We Do”. 67 InterAction website, section “Who we are”, available at https://www.interaction.org/about-interaction/, last visited 01/09/2020. 68 Ibid, section “What we do”. 69 Ibid, section “U.S. Foreign assistance”. 70 International Medical Corps website, section “Hurricane Dorian”, available at https://internationalmedicalcorps.org/emergency-response/hurricane-dorian/, last visited at 01/09/2020. 325

Department of Commerce held a “stewardship” role over the domain name system by virtue of a contractual relationship with the ICANN71. The ICANN similarly to the ICPC is a non-governmental organization representing “the public sector, the private sector, and technical experts as peers”72. These cases demonstrate successful cooperation between national administrations and non-governmental institutions in the form of public-private partnership.

The ICPC currently has no agreement with any government to establish mutual connections. However, in addition to observer- consultant status in international organizations it would be advantageous to raise the prestige and knowledge of the ICPC in national jurisdictions. To achieve this, various measures can be taken. For instance, negotiations with national governments to enhance better cooperation; promotion of the ICPC activities on the governmental level through ministerial websites, newsletter, or email subscription; invitation of the ICPC representatives to give teaching sessions and share their knowledge. The ICPC advocated as a prestigious NGO, considered on the same level with traditional international organizations and aimed at observing compliance of states to internationally established norms may contribute to solving the problem of control in international law.

To achieve this, the ICPC’ policies and internal procedures may need to be revised to become more open. Not only for new members and those who want to participate in its work but also for governmental

71 L. G. Kruger, “Internet Governance and the Domain Name System: Issues for Congress, Congressional Research Service, 7-5700 , R42351”, summary, prepared for members and committees of congress, 2016, available at https://www.everycrsreport.com/files/20120209_R42351_8e4fd9328fcec7d96ff9 55899ea4ed8c189458e6.pdf, last visited 01/09/2020. 72 ICANN website, section “About ICANN”, available at https://www.icann.org/resources/pages/welcome-2012-02-25-en, last visited 01/09/2020. 326 officials. Possibly, more publicity to its working sessions is required. Presently it is restricted only to its members73.

One more suggestion in restructuring the ICPC is to serve as a first instance in solving disputes arising around submarine cables as, for example, in the case of the NGO International Chamber of Commerce providing administered dispute resolution services74. The ICPC possesses specialists, data, and knowledge in cable-related matters. Thus, it would be a suitable forum for dispute settlement procedures either between private companies or states. However, it may require re-organization of the ICPC itself by opening new department specialized in dispute settlement and hiring new staff responsible for new operation area.

To conclude, the proposal to improve the legal regime of submarine cables includes:

First, adequate, up-to-date interpretation of provisions regulating submarine cables contained in the UNCLOS and other international agreements.

Second, reflecting the nature of submarine cables emphasizing development of relations with other maritime activities, respecting the role of submarine cables as a critical infrastructure, and ensuring their security.

Third, a strong role of the ICPC as a non-governmental international organization with powerful consultative status, extended mandate, and geographical representation together with regional authorities.

73 This is based on author’s personal experience of applying for a permission to access the ICPC Plenary Meeting held 28-30 of April 2020 in Madrid and having a negative response from the ICPC Secretariat explaining that “the ICPC’s Plenary is a closed event, with admission permitted only for ICPC Members and invited speakers”. 74 International Chamber of Commerce website, section “Dispute Resolution”, available at https://iccwbo.org/about-us/who-we-are/dispute-resolution/, last visited 01/09/2020. 327

CONCLUSION

The research conducted in the thesis allows concluding that submarine cables as an object of legal regulation constitute a tremendous interest of the international community. Nonetheless, the current model of governance and legal regulation on various levels reveals serious deficiencies affecting submarine cables industry. The regime governing submarine cables is a hybrid regime including global public interest and due to a multiplicity of legal relations appears to be fragmented regime. Therefore, existing deficiencies need to be addressed by the international law to ensure progressive development of the field. To achieve this aim substantive and institutional arrangements are required.

The main conclusions of this work are listed below. They are expressed in the same logical order as the structure and development of the thesis. First five conclusions relate to the legal nature of submarine cables; other three contain reasoning on the current submarine cables legal regime; four final conclusions are dedicated to research results and suggest several findings to improve the current regulation.

FIRST: International law lacks a relevant definition of a submarine cable as an object of legal regulation. The variety of definitions proposed by domestic laws, academic sources and other fields of science do not address cables’ specific characteristics and peculiarities. Therefore, such definitions cannot be used in international legal order. In these circumstances, the following definition elaborated in the framework of the thesis, appears to be suitable for use in international law: international submarine cable is an underwater cable, irrespective of its type, designed for service on the seabed, laid in established maritime areas in accordance with international law with the purpose of transmitting electric current and telecommunications signals.

SECOND: Submarine cables accumulate various features that makes them subject to a hybrid legal nature. There are numerous maritime

329 spaces where cables are laid: those under coastal states jurisdiction, not under coastal states jurisdiction but where states have certain jurisdictional rights and spaces where no state is entitled to exercise jurisdiction. In each maritime space submarine cables are regulated and implemented by states differently. That contributes to the fragmentation and submarine cables multi-level legal regime. Also, there are several subjects involved in the process of cable installation. Not only states primarily addressed by the UNCLOS and other relevant international agreements enter legal relations concerning submarine cables. Besides, private companies play a significant role in submarine cables legal regime. They vary in the form of ownership, profile, corporate structure, and territorial affiliation but remain to be main actors in submarine cables activities. There are also diverse interests in submarine cables from the perspective of states, private sector, and individuals. Economic, security, political, environmental interests are concerned by submarine cables making them an essential infrastructure. As a consequence of such multiplicity the applicable law includes several levels. Along with the UNCLOS and other relevant international agreements, submarine cables are regulated by domestic law of states and private law instruments.

THIRD: Due to importance of submarine cables for the international community they need to be considered as an object of global public interest. This concept applies to submarine cables meaning that global public interest is not equivalent to the variety of individual interests of states, private companies or individuals taken all together. Submarine cables as a global public interest mean the interest of an international community shared by all its members. Telecommunications provided by submarine cables as a critical infrastructure are of concern to all subjects of current international law as all of them equally depend on their stable operation. The law of submarine cables appears to be new arising sphere where global public interest might be distinguished since it satisfies its two elements: global, meaning that submarine cables are not an object of concern only in a particular territory or in a particular state; and

330 public, meaning that various groups of subjects have a common interest in submarine cables. A consideration of submarine cables as a global public interest also allows treating them as a public good. It applies not only to the Internet transmitted by cables but to submarine cables as an infrastructure. Without the presence of submarine cables, the Internet would not exist as it is currently known.

FOURTH: There is an absence of a central regulative authority responsible for submarine cables. No international organization has taken the initiative to comprehensively develop governance model of submarine cables and intend to balance law regulating submarine cables on different levels. ITU, IMO, CLCS and ISA as primary institutions of the law of the sea and telecommunications law offer regulation of submarine cables at times. However, it does not appear to be balanced and comprehensive. Oftentimes it concerns only some specific aspects thus being one-sided. As a result, it creates obstacles for the consistent development of the international legal regime of submarine cables. This disadvantage is partly addressed by the existence of the ICPC, the only institution positioning itself as an authority with the primary aim in submarine cables regulation. It is a non-governmental institution with a private nature although its functions and structure are overly similar to functions of intergovernmental international organization.

FIFTH: The current legal regime of submarine cables is a result of a gradual process of normative development. It could not have evolved without international agreements preceding the UNCLOS, namely the 1884 International Convention for the Protection of Submarine Telegraph Cables and the 1958 Geneva Conventions on the Continental Shelf and on the High Seas. These international agreements contributed to the regulation currently established by the UNCLOS in the following aspects. The legal protection of submarine cables was the main achievement reached by the 1884 Convention. It established several obligations for contracting parties such as obligation not to cause damage to submarine cables, to

331 maintain a distance from a cable to ensure its security and gave states the right to grant a permit for cables landing. Some legal provisions established by the 1884 Convention have not lost their relevance today and found their reflection in the UNCLOS. However, at present the 1884 Convention cannot be considered as widely applied agreement since the majority of states have signed the UNCLOS and the 1884 Convention in accordance to the law of treaties applies only to the extent that its provisions are compatible with the UNCLOS. It also cannot be appraised that provisions of the 1884 Convention constitute customary international law. As for the Geneva conventions, they introduced novelties in terms of new maritime spaces: continental shelf and the high seas; brought a concept of “reasonable measures” to the law of the sea and the obligation to respect other uses of the seabed. The Geneva conventions were substituted by the UNCLOS for states parties to it. However, states that did not ratify the UNCLOS are still bound by Geneva conventions that appears to be an extraordinary situation. All contributions made by these legal instruments significantly influenced the current submarine cables regulations.

SIXTH: The UNCLOS is a primary international agreement constituting legal regime of submarine cables that consists of rights and obligations of states in various maritime zones. The convention divided all maritime spaces into three categories: under the sovereignty of coastal states (territorial sea and archipelagic waters), under certain jurisdictional rights of coastal states (contiguous zone, exclusive economic zone and continental shelf) and not under jurisdiction of any state (high seas and international seabed area). In each of these zones rules governing submarine cables differ and gradually evolve from broad discretion in areas under coastal state jurisdiction to limited regulation in areas free from jurisdiction of any state. Nevertheless, the common remark might be observed comprising that each time the right is granted to states, corresponding limits of this right are also established by the convention. The general aim of the UNCLOS is to maintain the balance between rights of coastal states and all other states in relation to submarine cables. The following most important provisions of the UNCLOS concerning submarine cables might be emphasized. In the

332 territorial sea there are two main aspects. First, coastal states may establish rules governing submarine cables limited by the exercise of innocent passage by foreign vessels which, however, shall refrain from exercising restricted actions in relation to cables such as eavesdropping and espionage. Second, states are limited in establishing rules concerning cables unless they are giving effect to generally accepted international rules or standards. Archipelagic states similarly to coastal states, may regulate activities in archipelagic waters in order to protect submarine cables limited by the need to respect existing agreements with other states and recognize traditional rights to fishing and other legitimate activities of directly adjacent neighboring states; and to respect existing submarine cables laid by other states and passing through its waters without making a landfall. The contiguous zone does not address submarine cables and appears to be unrelated to submarine cables legal regime. In the exclusive economic zone of one state all other states including landlocked are granted the right to lay submarine cables limited by the need to respect laws and regulations of the coastal state. Similarly, all states have the right to lay submarine cables on the continental shelf limited by the right of a coastal state to block the cable project if it interferes with its right to explore resources of the seabed. Also, the regulation of cable activities on the continental shelf by coastal states shall not prejudice interests of navigation and other rights and freedoms of other states provided in the UNCLOS that is limited by the obligation of third states to give due regard to domestic laws. In the high seas all states have right to lay submarine cables limited by due regard to interests of other states exercising freedoms of the high seas. States have an obligation to define a break or injury to a submarine cable as a punishable offence in their domestic legislation, an obligation to prescribe that costs to repair damaged submarine cable should be compensated, and the obligation that cable owner shall indemnify the subject causing damage to a submarine cables for loss incurred in avoiding injury to such cable. There are no provisions directly addressing submarine cables in the International Seabed Area. However, the regime of the high seas applies providing all states with the freedom to lay submarine cables in the Area limited by due regard to already existing submarine cables and non-interference with the repair possibilities of

333 such cables. These provisions of the UNCLOS constitute a basis for further development of legal norms.

SEVENTH: Apart from the UNCLOS the legal regime of submarine cables includes several international agreements making a significant contribution to it. Sectorial conventions pertaining to different branches of international law extend submarine cables regulation to diverse matters. Thus, safety of navigation of cable ships is ensured by rules preventing collisions at sea and specifying a special status of cable ships restricted in maneuvering so that all other vessel shall respect their presence at sea. At the same time, cable ships are obliged not to cause dumping to the marine environment during their operations. The possibility to limit liability for cable damage is also envisaged by international law excluding, however, cases of intentional or negligent damage. A critical contribution to submarine cables legal regime is made by rules addressing security of cable ships. In particular, from acts of piracy by giving master of a cable ship wide powers to bring a person suspected in committing unlawful acts to competent authorities. An extended coverage of rules to all maritime areas except those under national jurisdiction is a great achievement to ensure security of cable ships worldwide. International law approaches submarine cables from diverse perspectives one of that being consideration of cables as an energy-related infrastructure. By this perspective, power submarine cables are addressed in the context of regulating energy transmission. Complementary instruments also position submarine cables within other activities of the seabed. A notable example is possible controversies with underwater cultural heritage sites located in the same areas where cables are laid that are not currently resolved in international practice. However, submarine cables are already brought in the context of competitive uses of the sea that might facilitate further discussion. Finally, submarine cables legal regime is contributed by soft law, non-binding instruments issued by international organizations. They aim to rapidly react on changes in the international environment and might have even greater influence than conventional agreements. Generally, complementary

334 instruments cover additional issues not addressed by the UNCLOS and contribute to the development of a legal regime. At the same time, they create a dispersed regulation, lack integrity, and make it complicated to collect all the norms at once to observe the entire picture of the legal regime of submarine cables.

EIGHTH: Provisions contained in domestic law of states and clauses of private cable agreements constitute an inherent part of the legal regime of submarine cables. States implementing their obligations under international law provide with diverse practices of cable regulation. However, some common tendencies include enacting protection measures for submarine cables, elaborating detailed regulation and establishing specifically designated authority to govern submarine cables. Some states also invoke other initiatives beyond conventional obligations. Generally, all states might be divided into three groups by the extent how they implemented provisions of international law and particularly of the UNCLOS. First, states dedicating sufficient consideration to submarine cables and having advanced and well-developed legislation on the topic. Second, states having less detailed regulation, leaving some issues unregulated, and providing lower degree of submarine cables governance. Nevertheless, such states are usually parties to international agreements on submarine cables and maintain some successful provisions. The third group consists of states with legislation lacking several essential issues in regulating submarine cables and where significant gaps are encountered by submarine cable industry. Consequently, there is no uniformity in rules and standards employed by states to govern submarine cables. It results in obstacles encountered by submarine cables industry during performance of the project that most commonly has an international nature. The level of consistency is supported to a certain extent by standard provisions elaborated by cable industry for contracting installation and maintenance of submarine cables. The legal nature of such provisions might be considered as best practices and guidelines used by the cable industry. Although such standards are extensively employed, they remain to be non-binding and appear to be distant

335 and disconnected from international law. A well-developed legal regulation of laying and maintenance of submarine cables is essential given that international law cannot progress distantly from other levels of regulation. Therefore, comprehensive legal regime of submarine cables should include a developed and interconnected regulation of international law harmoniously complemented by states’ national legislation and private law level, and provide due consideration to a hybrid nature of submarine cables.

NINTH: The current legal regime of submarine cables includes various deficiencies preventing its consonant and harmonious development. These deficiencies might be classified into three groups. First, normative deficiencies and deficiencies of content including lack of basic definitions and lack of basic provisions. The absence of definitions creates uncertainty and gives wide discretion to states in further implementation of international agreements. Concerning the lack of provisions, there are critical issues not addressed by international law that being a failure to address companies as main subjects participating in cable installation, a failure to consider submarine cables as an infrastructure and a failure to address submarine cables in overlapping zones. The first group of problems generates gaps in the legal regime on the basic level of regulation, in international law, that contributes to further development of the legal regime. Consequently, the second group of deficiencies might be characterized as improper interpretation and implementation of international law in domestic legislation of coastal states. Two extremes exist within this group: overregulation when states create excessive requirements for submarine cables; and, on the opposite, the lack of regulation when essential issues remain unregulated and constitute a source of concern for cable industry. Domestic laws may directly contradict international provisions, create ungrounded requirements, or misinterpret international agreements. Alternatively, states do not possess sufficient norms governing submarine cables, lack qualifying the act of damage to submarine cables as a punishable offence, do not properly consider theft of submarine cables as an international crime and lack

336 transparency in cable laying and repairing process. It is further exaggerated by the abundance of regulatory instruments on submarine cables with various forms, legal force, time they were enacted and other characteristics. Therefore, there is no uniformity in implementation of international law provisions to domestic legal orders. The third group of deficiencies may be characterized as deficiencies relating to fulfillment or control of fulfillment of legal norms. The absence of a central authority for submarine cables governance appears to be the most critical issue within this group of deficiencies. The ICPC remains the only institution responsible for comprehensive submarine cables governance. The institutional aspect is followed by the collision of norms regulating competitive activities of the seabed. In particular, fishing, underwater cultural heritage, and exploration and exploitation of the resources of the seabed. A question of priority to be given to any of the activity in the case of intersection remains open in international law as no definite criteria currently exist. Generally, there are various problems of the current legal regime of submarine cables that require proper solution.

TENTH: The most appropriate mode to change the existing legal regime of submarine cables appears to be informal change through an adequate interpretation of existing norms. After the analysis completed in the thesis, formal procedures of amendment and modification of the UNCLOS and other international agreements proved that they are not suitable for the effective change of submarine cables legal regime. The same is revealed in relation to the adoption of a new agreement entirely dedicated to submarine cables. Formal procedures might be characterized as rigid, uncompromising, time-consuming, and therefore not appropriate for rapidly changing submarine cables industry. In these circumstances, the informal procedure to change the legal regime of submarine cables is considered to be practical. After examination of the applicability of several informal procedures such as self-regulated regime of governance, “Global compact” concept and the convention as a living instrument the most befitting appears to be interpretation for better implementation suggested by the author being an adequate interpretation of submarine cables provisions by putting the actual

337 practice in the arena and interpreting texts according to modern situation. Thus, rules originate in practice among end users of law, then in the circumstances of inapplicability of formal means to change international law this practice serves as an interpretation power for already existing rules, and finally these “new” rules with an extended meaning are circulating back to states to promote the efficient application of law between many states ensuring wide geographical representation. It conveys broadening the scope of existing agreements regulating submarine cables by including the actual conduct and practice of all actors involved in submarine cables activities. The solution is intended to look beyond the text of instruments regulating submarine cables and deliver most relevant updates existing nowadays, make the knowledge available for all interested parties, distribute it and promote within states to make the legal regime comprehensive.

ELEVENTH: The legal regime of submarine cables needs to be improved towards a hybrid model of regulation. This may be achieved by reaching the balance in submarine cables relations provided that other seabed users also exercise their rights in the sites where submarine cables are laid. To mitigate controversies, an integrated management of diversified submarine cables activities meaning share of data in the form of weekly or monthly circulars issued by the ICPC containing updates on submarine cables may become a solution. Also, the area-based planning could serve as a tool to balance various activities. It requires preliminary research of existing and planned activities in the area and interdisciplinary approach. It would help avoiding fragmentations in dividing ocean space between users and facilitate harmonious development of the ocean floor. The next measure is the establishment of cable protection areas by governmental or private sector, respected as effective measures of submarine cable protection, timely reviewed and appearing in the high seas. The ICPC may take the leading role in the process. States or cable owners might communicate cable coordinates to interested parties through the ICPC intending to notify all competing activities about submarine cable and at the same ensure safety of such information. Initiatives similar to those taken by non-governmental organizations could also be implemented to

338 improve submarine cables governance. For instance, independent monitoring and observation of activities in the vicinity of submarine cables with the subsequent report to interested states in which maritime zones cables are laid. The preventive measures taken by states as a result of such reports might facilitate the protection of submarine cables. The next proposal to improve the legal regime towards a hybrid model is an extension of international cooperation. For this purpose, increase of participation in the ICPC by accumulating various interests and attracting attention to cables problems from participants engaged in submarine cables activities, lowering annual fees for members encountering difficulties in paying them, and extending the network of meetings and conferences where decisions are made could be considered as appropriate solutions. To follow this mode of improvement, the concept of neutralization of submarine cables is proposed conveying that cables are considered not as a summary of private property owned by various companies but as a whole neutral object passing through numerous maritime zones and serving for the benefit of mankind. A consideration of submarine cables as a neutral object would facilitate an awareness between states in relation to deficiencies of submarine cables. Another suggestion is the prohibition to restrict and limit the operation of submarine cables in the case of suspension of diplomatic relations or sanctions to avoid generating obstacles for communications that constitute a global public interest. The final dimension how the hybrid regime might be achieved is enhancement of submarine cables security. In this sense, it might be beneficial to revise ownership and transfer of the cable data. The ICPC as a neutral administrator may ensure that cable companies notify about new cables coordinates and actualize coordinates of already exiting cables. A supervision exercised by the ICPC to ensure that data is shared only with verified official representatives and standard non- disclosure agreements might also be effective tools. The interpretation of essential notions amplifying their meaning is proposed for break or injury to submarine cables, terrorism threat, reasonable measures, and responsibility for cyber espionage by means of submarine cables. They are also expected to contribute to the harmonious development of submarine cables legal regime. Finally, the responsibility for cyber espionage by means of submarine

339 cables requires consideration. Thus, submarine cables shall be given the immunity extended to peaceful time as well as to the time of armed conflicts between states due to their critical importance. It is followed by the proposal to establish the recognized obligation to enter into crossing agreement to settle mutual rights and obligations of a crossed and crossing party for the improvement of the submarine cables legal regime.

TWELFTH: Institutional arrangements are required to improve the existing legal regime of submarine cables. To achieve this, the status of the ICPC in international law is subject to re-consideration. In particular, for the purpose of better governance the ICPC’ competence should be extended by making its legal power stronger with a mandate to issue binding recommendations and standards to be followed by the ICPC members. A system of contracts ensuring compliance with the ICPC recommendations is also considered as a prospective tool. Members of the ICPC could recognize a mandatory character of its already existing recommendations through the system of contracts. In this scenario, a restructuration of the ICPC and inclusion of the contract office and compliance department would be further steps to implement. Amplifying geographical representation of the members of the ICPC is another suggestion. Shifting focus on inviting representatives from Asia and Middle East as well as including more domestic laws into the ICPC Members Database would allow extending the authority of the ICPC. Additionally, the legal personality of the ICPC in international law is subject to review. The proposal concerning the status of NGOs is to consider them equally with international organizations and grant the same legal personality. In particular, to the ICPC. Thus, a new structure of governance might be constituted in the context of submarine cables: the ICPC as an umbrella organization supported by regional submarine cables organizations, all having a non-governmental status but possessing a strong reputation in international law. The role of the ICPC as an umbrella organization suggests an extension of the scope of regulation to cover more issues, involvement of cable industry actors in the process of drafting and subsequent control, and making professional industry actors more familiar with such regulation. The role of regional submarine cables institutions is to

340 follow the ICPC’s instructions and to ensure compliance on the local level. The last issue in the framework of institutional arrangements is the extension of cooperation with existing international organizations. The ICPC may apply for observer/consultant status in the ITU, IMO and ISA to be involved in receiving latest information for better coordination of its own activity; to receive the right to form an agenda of such international organizations for raising the awareness of submarine cables and visibility of problems of their legal regulation; take part in the activity of international organizations through consultations, organizing side events and promoting the necessity of effective legal regulation of submarine cables. Additionally, the ICPC’s presence in the IGF to make a greater amount of subjects familiar with the issue would increase chances for better governance. Finally, coordination of actions with states by establishing public-private partnership would conclude the proposed measures for institutional arrangements. The ICPC is expected to interact with national administrations, enter into agreements with governments and effectively resolve arising problems. To achieve this, negotiations with national governments to enhance better cooperation; promotion of the ICPC activities on the governmental level through ministerial websites, newsletter or email subscription; invitation of the ICPC representatives to give teaching sessions and sharing their knowledge are possible measures. One more suggestion in restructuring the ICPC is to grant an additional competency of being a dispute settlement body for submarine cables issues. The ICPC possesses specialists, data, and knowledge in cable-related matters. Thus, it would be a suitable forum for dispute settlement procedures either between private companies and states. It may require re-organization of the ICPC by opening new department specialized in dispute settlement and hiring new staff responsible for new operation area.

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Nordquist, M., Nandan, S., Rosenne, S., (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, Dordrecht, Boston and London: Martinus Nijhoff Publishers, vol. V, 1993.

Noyes, J., “U.S. Policy and the United Nations Convention on the Law of the Sea”, George Washington International Law Review, vol. 39, 2007, pp. 621-638.

Papanicolopulu, I., “The Law of the Sea Convention: No place for Persons” in Freestone, D., (eds.), The 1982 Law of the Sea Convention at 30: Successes, Challenges and New Agendas, Leiden and Boston: Martinus Nijhoff, 2013, pp. 191–200.

Proelss, A., United Nations Convention on the Law of the Sea: A Commentary, Edition 1, Leiden: Beck/Hart/Nomos, 2017.

Sharma, O.P., The International Law of the Sea: India and the UN Convention of 1982, Oxford: Oxford University Press, 2009.

Wood, M., “Reflections on the United Nations Convention on the Law of the Sea: A Living Instrument” in Barret, J., Barnes, R., Law of the sea. UNCLOS as a Living Treaty, London: The British Institute of International and Comparative Law, pp. 77-82.

Yturriaga Barberán, J. A., “Spain at UNCLOS”, Spain and the Law of the Sea: 20 years under LOSC, Spanish Yearbook of International Law, vol. 21, 2017, pp. 163- 180.

C) TERRITORIAL SEA

Buga, I., “Territorial Sovereignty Issues in Maritime Disputes: A Jurisdictional Dilemma for Law of the Sea Tribunals”, The International Journal of Marine and Coastal Law, vol. 27, No. 1, 2012, pp. 59-96.

Schofield, C. H, “Departures from the Coast: Trends in the Application of Territorial Sea Baselines under the Law of the Sea Convention”, The International Journal of Marine and Coastal Law, vol. 27, No. 4, 2012, pp. 723-732.

D) ARCHIPELAGIC WATERS

Hong, N., Li, J., Chen, P., “The Concept of Archipelagic State and the South China Sea: UNCLOS, State Practice and Implication”, China Oceans Law Review, vol. 2013, Issue 17, 2013, pp. 209-239.

Pentinat Borrás, S., “Related agreements and Spain: Fish stocks and marine biological diversity”, Spain and the Law of the Sea: 20 years under LOSC, Spanish Yearbook of International Law, vol. 27, 2017, pp. 199-209.

347

Ruth, D., Hanich, Q., “Small-island States and the LOS Convention 30 Years On: Have the Benefits been Realized?” in Aldo, S., Coffen-Smout, S., McConnell, L., (eds.) Ocean Yearbook 26, Martinus Nijhoff Publishers, 2012.

E) CONTIGUOUS ZONE

Aznar, M., “The Contiguous Zone as an Archaeological Maritime Zone”, International law Journal of Marine and Coastal Law, vol. 29, 2014, pp. 1-51.

De Pietri, D., “La redifinición de la zona contigua por la legislación initerna de los Estados”, Revista Española de Derecho Internacional 62, 2010, pp. 119-144.

F) EXCLUSIVE ECONOMIC ZONE

Coquia, J. R., “Development and Significance of the 200-Mile Exclusive Economic Zone”, Philippine Law Journal, vol. 54, Issue 4, 1979, pp. 440-448.

Jensch, U., “The Exclusive Economic Zone as an Instrument for Environmental Management in the North Sea Area”, International Journal of Estuarine and Coastal Law, vol. 5, 1990, pp. 228-240.

Koh, T., “The Exclusive Economic Zone”, Malaya Law Review, vol. 30, Issue 1, 1988, pp. 1-33.

Kwiatkowska, B., The 200 mile exclusive economic zone in the new law of the sea, Leiden: Martinus Nijhoff Publishers, 1989.

Lawrence, J., “The Exclusive Economic Zone and Ocean Management”, Ocean Development and International Law, vol. 18, Issue 3, 1987, pp. 305-332.

Pharand, D., Leanza, U., (eds.), The Continental Shelf and the Exclusive Economic Zone; Delimitation and Legal Regime, Dordrecht: Martinus Nijhoff Publishers, 1993, pp. 37-45.

Pueyo Losa, J. A., “La indeterminación del nuevo orden jurídico marítimo internacional: Reflexiones sobre el carácter consuetudinario de la zona económica exclusiva y el valor de la Nueva Convención sobre el derecho del mar”, Revista Española de Derecho Internacional, vol. 37, Issue 2, 1985, pp. 323-354.

Tanaka, Y., The international law of the sea, Cambridge: Cambridge university Press, 2012.

G) CONTINENTAL SHELF

Anand, R., Origin and Development of the Law of the Sea: History of International Law Revisited, Hague: Martinus Nijhoff, 1982.

348

Faramiñán Gilbert, J. M., “The continental shelf and its extension”, Spain and the Law of the Sea: 20 years under LOSC, Spanish Yearbook of International Law, vol. 21, 2017, pp. 267-277.

Faramiñán Gilbert, J. M., “Consideraciones jurídicas sobre la extensión de la plataforma continental (PC) más allá de las 200 (M) millas marinas (algunas referencias a la plataforma continental española)”, in Bou Franch, V. E., and Juste Ruiz, J. (eds.) and Sánchez Patrón, J. M., (Dir.), Derecho del mar y sostenibilidad ambiental en el Mediterráneo, Valencia: Tirant lo Blanch, 2014.

Kunoy, B., “The Terms of Reference of the Commission on the Limits of the Continental Shelf: A creeping Legal Mandate”, Leiden Journal of International Law, vol. 25, 2012, pp. 109-130.

McDorman, T., “The Continental Shelf Regime in the Law of the Sea convention: A reflection on the First Thirsty Years”, International Journal of Marine and Coastal Law, vol. 27, 2012, pp. 743-751.

O’Connell, D. P., International Law of the Sea, Oxford: Clarendon Press 1982, vol. I.

Stoll, P-T., “Continental Shelf”, MPEPIL, September 2008, pp. 1-11.

H) HIGH SEAS Allott, P., “Power Sharing in the Law of the Sea”, American Journal of International Law, vol. 77, 1983, pp. 1-30.

Attard, D., Fitzmaurice, M., Martínez Gutiérrez, N. A, The IMLI Manual on International Maritime Law, Oxford: Oxford University Press, vol. I: The Law of the Sea, 2014.

Barnes, R., “The Law of the Sea Convention and the Integrated Regulation of the Oceans”, International Journal of Marine and Coastal Law, vol. 27, 2012, pp. 859- 866.

Guilfoyle, D., “The High Seas” in Rothwell, D., Elferink, A., Scott, K., and Stephens, T., The Oxford Handbook of the Law of the Sea, Oxford: Oxford University Press, 2015.

Lukashuk, I., Mezdunarodnoe pravo. Osobennaya chast” (in Russian), Moscow: Wolters Kluwer, 2008.

Takei, Y., Filling Regulatory Gaps in High Seas Fisheries Discrete High Seas Fish Stocks, Deep-sea Fisheries and Vulnerable Marine Ecosystems, Leiden: Martinus Nijhoff Publishers, Publications on Ocean Development Series, vol. 75, 2013.

349

I) AREA

Albiol Biosca, G., El régimen jurídico de los fondos marinos internacionales, Madrid: Tecnos, 1984.

Nelson, L., “The New Deep Seabed Mining Regime”, The International Journal of Marine and Coastal Law, vol. 10, 1995, pp. 189–203.

Oxman, B. H., “The High Seas and the International Seabed Area”, Michigan Journal of International Law, vol. 10, Issue 2, 1989, pp. 526-542.

Salamanca Aguado, E., La zona internacional de los fondos marinos: Patrimonio Común de la Humanidad, Madrid: Dykinson, 2003.

Subedi, S. P., “Problems and Prospects for the Commission on the Limits of the Continental Shelf in Dealing with Submissions by Coastal States in Relation to the Ocean Territory beyond 200 Nautical Miles”, The International Journal of Marine and Coastal Law, vol. 26, 2011, pp.413-431.

J) UNDERWATER CULTURAL HERITAGE

Aznar, M., Varmer, O., “The Titanic as Underwater Cultural Heritage: Challenges to Its Legal International Protection”, Ocean Development and International Law, vol. 44, 2013, pp. 96–112.

Blake, J., “The Protection of the Underwater Cultural Heritage”, International and Comparative Law Quarterly, vol. 45, Issue 4, October 1996, pp. 819-843.

Boyarskiy, P., “Problemy vyavleniya, izucheniya y sokhraneniya kulturnogo i prirodnogo naslediya Rossiiskoi Arktiki na territorii Archangelskoi oblasti” (Problems of identification, study and preservation of the cultural and natural heritage of the Russian Arctic in the territory of the Arkhangelsk region), Sovremennaya nauka: Aktyalnye problemy, No. 1-2, 2013, pp. 8-12.

Dromgoole, S., Underwater Cultural Heritage and International Law, Cambridge: Cambridge University Press, 2013.

Frost, R., “Underwater Cultural Heritage Protection” in Byrnes, A., Charlesworth, H., Australian Yearbook of International Law, vol. 23, Sydney: Robert Burton Printers, 2004, pp. 25-50.

Nevitt, M., “The National Historic Preservation Act: Preserving History, Impacting Foreign Relations’”, Berkley Journal of International Law, vol. 32, 2014, pp. 388-444.

Perez-Alvaro, E., “Unconsidered Threats to Underwater Cultural Heritage: Laying Submarine Cables”, Rosetta, vol. 14, 2013, pp. 54-70.

350

Prott, L., O'Keefe, P., “International Legal Protection of the Underwater Cultural Heritage”, Belgian Review of International Law, vol. 14, Issue 1, 1978-1979, pp. 85-103.

Rau, M., “The UNESCO Convention on the Underwater Cultural Heritage and the International Law of the Sea”, Max Plank Yearbook of United Nations Law, vol. 6, 2002, pp. 387-482.

Scovazzi, T., Underwater Cultural Heritage, edited by Wolfrum, R., New York: Oxford University Press, 2009.

III. PUBLIC INTEREST

Bělohlávek, A. J., “Public Policy and Public Interest in International Law and EU Law”, Czech Yearbook of International Law, 2012, pp. 117-149.

Huesa, R., “La protección del interés público global: una nueva dimensión para las normas y obligaciones internacionales”, in Bouza, N., García, C. , Rodrígo, Á. J., Coordinador: Pareja, P., La gobernanza del interés público global. XXV Jornadas de la Asociación Española de Profesores de Derecho Internacional y Relaciones Internacionales, 2015, pp. 253-286.

Kaul, I., Grunberg, I., Stern, M., “Defining Global Public Goods” in Kaul, I., Grunberg, I., Stern, M. (eds.) Global Public Goods: International Cooperation in the 21st Century, New York: Oxford University Press, 1999, pp. 2-19.

Kornicker Uhlmann, E., “State Community Interests, Jus Cogens and Protection of the Global Environment: Developing Criteria for Peremptory Norms”, Georgetown Environmental Law Review, vol. 101, 1998-1999, pp. 101-135.

Kulick, A., Global Public Interest in International Investment Law. Cambridge Studies in International and Comparative Law, Cambridge, UK: Cambridge University Press, 2012.

Malý, I., “The Issues of Defining and Enforcing Public Interest”, paper presented at the Theory Seminar Organized by the Department of Public Economy of the Faculty of Economics and Administration at Masaryk University in Brno in Cooperation with the Public Economy Association, Brno: Masaryk University, pp. 21-22.

Riedel, E., “International Environmental Law. A Law to Serve the Public Interest? An Analysis of the Scope of the Binding Effect of Basic Principles (Public Interest Norms)”, in J. Delbrück (Ed.), Proceedings of an International Symposium of the Kiel Walther-Schücking- Institute of International Law, March 6 to 8, 1996, Berlin: Duncker & Humblot, 1997.

Rodrigo, A.J., “Más allá del derecho internacional: el derecho internacional público”, in Méndez-Silva, R., Derecho internacional, primera edición, México: El Colegio Nacional: UNAM, Instituto de Investigaciones juridicas, 2019, pp. 67-98.

351

Simma, B., “From Bilateralism to Community Interest in International Law”, Recueil des Cours de l'Academie de Droit International, vol. 250, 1994, pp. 217- 384.

Tanaka, Y., “Protection of Community Interests in International Law: The Case of the Law of the Sea” in von Bogdany, A., Wolfrum, R., Max Plank Yearbook of United Nations Law, vol. 15, 2011, The Netherlands: Koninklijke Brill N.V., pp. 329-375.

Tyurina, N. E., Publichnyi interes v mezdunarodnom torgovom prave/Public interest in international trade law (in Russian), Kazan: Abstract Publishing, 2016.

Villalpando, S., “The Legal Dimension of the International Community: How Community Interests are Protected in International Law”, European Journal of International Law, vol. 21, 2010, pp. 387-419.

Von Bogdany, A., Dann P., Goldmann M., “Developing the Publicness of Public International Law: Towards a Legal Framework for Global Governance Activities. The Exercise of Public Authority by International Institutions”, Conference paper, Part of the Beiträge zum ausländischen öffentlichen Recht und Völkerrecht book series Beiträge, vol. 210, pp. 3-32.

Von Bogdandy, A., Goldmann, M., “The Exercise of International Public Authority through National Policy Assessment”, International Organizations Law Review, vol. 5. 2008, pp. 241-298.

Williamson, O. E., “The Economics of Governance: Framework and Implications”, The American Economic Review, vol. 95, No. 2, Papers and Proceedings of the One Hundred Seventeenth Annual Meeting of the American Economic Association, Philadelphia, January 7-9, 2005, pp. 1-18.

V. SUBMARINE CABLES

A) GENERAL LEGAL ASPECTS

Askheim, L. O., “Commercial Arrangements and Liability for Crossing Pipelines, Power Cables and Telecom Cables (Connectors) on the Seabed” in Banet, C., The Law of the Seabed. Access, Uses, and Protection of Seabed Resources, Leiden: Brill|Nijhoff, 2020, pp. 553-571.

Baikov, E. A., Zykov, G. L., Tainy podvodnogo spionazha/Secrets of underwater espionage (in Russian) Moscow: Veche, 2002.

Beckman, R., “A New International Convention or a Protocol”, Centre of International Law, Workshop on Submarine Cables and the Law of the Sea, 2009.

352

Beckman, R., “Submarine Cables – A Critically Important but Neglected Area of the Law of the Sea”, paper presented at 7th International Conference on Legal Regimes of Sea, Air, Space and Antarctica, 15-17 of January 2010, New Delhi.

Beckman, R., Davenport, T., Workshop On Submarine Cables And Law Of The Sea (Workshop Report), Centre for International Law, National University of Singapore, 2009, pp. 2-74.

Burnett D., Davenport, T., Beckman, R., Submarine cables: The Handbook of Law and Policy, Leiden: Martinus Nijhoff, 2014.

Carter. L., Burnett, D., “Subsea Telecommunications” in Routledge Handbook of Ocean Resources and Management, edited by Smith, H. D., Suárez de Vivero, J. L. and Agardy, T, S., London and New York: Routledge, 2015, pp. 349-365.

Clark, B., “Undersea Cables and the Future of Submarine Competition”, Bulletin of the Atomic Scientists, vol. 72, Issue 4, 2016, pp. 234-237.

Coffen-Smout, S., Herbert, G., “Submarine cables: a challenge for ocean management”, Marine Policy, vol. 24, 2000, pp. 441-448.

Davenport, T., “Submarine Communications Cables and Law of the Sea: Problems in Law and Practice”, Ocean Development & International Law, vol. 43, Issue 3, 2012, pp. 201-242.

Gerlach, C., Seitz, R., “Economic Impact of Submarine Cable Disruptions”, Asia- Pacific Economic Cooperation Policy Support Unit publication, December 2012, pp. 1-87.

Gudkov, V. I., Lakhno, P. G., “International Legal Regulation of submarine pipelines construction”, Zakonodatelstvo, vol. 3, 2009, pp. 24-31.

Lagoni, R., “Cables, Submarine”, in: Berhnardt, R. (ed.), Encyclopedia of Public International Law, Max Planck Institute for Comparative Public Law and International Law, vol. I, 1992, pp. 516-519.

Mudrić, M., “Rights of States regarding underwater cables and pipelines”, Australian resources and energy Law Journal, vol. 29, 2010, pp. 235–256.

Renault, L., “The protection of submarine telegraphs and the Paris Conference (October – November 1882)”, Brussels and Leipzig International Law in Review, Brussel: Merzbach and Falk Publishers, 1884, pp. 2-23.

Van Logchem, Y., “Submarine Telecommunications Cables in Disputed Maritime Areas”, Ocean Development and International Law, vol. 45, 2014, pp. 107-122.

Wagner, E., “Submarine Cables and Protections Provided by the Law of the Sea”, Marine Policy, vol. 19, 1995. No.2, pp. 127-136.

353

B) TECHNICAL ASPECTS

Guseva, E., Istoriya stroitelstva podvodnyh kabelei/History of underwater cable construction (in Russian), Cable-news, vol. 4, 2010, pp. 78-87.

Marra, L. J., “Shark bite on the SL submarine light wave cable system: History, causes and resolution”, IEEE Journal Oceanic Engineering, vol. 14, 1989, pp. 230–237.

Ohta, T., Nishiyama, T., “Route Design/Cable Laying Technologies for Optical Submarine Cables”, NEC Technical Journal, vol. 5 No.1, 2010, pp. 46-50.

Worzyk, T., Submarine Power Cables: Design, Installation, Repair, Environmental Aspects, Berlin Heidelberg: Springer Verlag, 2009.

Zubair, M., Haider Z., Khan, S., Nasir Comsats J., “Atmospheric influences on satellite communications”, Przegląd Elektrotechniczny (Electrical Review), vol. 87, Issue 5, 2011.

C) SECURITY ASPECTS

Burnett, D., “Cutting a submarine cable can cost You, Your vessel and Your insurance protection!”, Squire Sanders (US) LLP, January 2012, pp. 1-2.

Burnett, D. R., “Note to Navy: It’s time to pay attention to security for undersea cables—crucial to global communications and commerce, and vital to our national interests”, Proceedings, U.S. Naval Institute, Annapolis, Maryland 2011, (410) 268- 6110, pp. 67-71.

Davenport, T., “The Criminalization of Damage to Submarine Cables: Problems and Prospects”, A Sea Change: Securing Submarine Cables in the Modern World, Annual Plenary Meeting of the International Cable Protection Committee, Lisbon, 2012, pp. 1-34.

Green, M., Drew, S., Carter, L., Burnett, D., “Submarine Cable Network Security”, presentation to APEC, International Cable Protection Committee, Information Sharing Workshop, 13 of April 2009, pp. 1-49.

Hantover, L. L., “The Cloud and the Deep Sea: How Cloud Storage Raises the Stakes for Undersea Cable Security and Liability”, Ocean and Coastal Law Journal, vol. 19, Issue 1, 2013, pp. 1-28.

Rapp, R. J., Submarine Cables: Critical Infrastructure Supplier Perspective, United States Interests in Prompt Adherence to the Law of the Sea Convention, The 34th Annual COLP Conference, 2010, pp. 1-21.

Sunak, R., “Undersea Cables. Indispensable, insecure”, Policy Exchange, 2017, pp. 2-43.

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D) ENVIRONMENTAL ASPECTS

Andrulewicz, E., “The Environmental Effects of the Installation and Functioning of the Submarine SwePol Link HVDC Transmission Line: A Case Study of the Polish Marine Area of the Baltic Sea”, Journal of Sea Research, vol. 49, 2003, pp. 337-345.

Axelsson, T., “Submarine Cable Laying and Installation Services For the Offshore Alternative Energy Industry”, Energy Ocean, 2008, pp. 1-9.

Burnett, D., “Impacts on international submarine cables by coastline state encroachment based in natural resources and environment” in Martin, L., Salondis, C., Hioureas, C., Natural Resources and The Law of the Sea, Exploration, Allocation, Exploitation of Natural Resources in Areas Under National Jurisdiction and Beyond, New York: Juris, 2017, pp. 147-184.

Burnett, D., Freestone, D., Davenport, T., “Submarine Cables in the Sargasso Sea: Legal and Environmental Issues in Areas Beyond National Jurisdiction”, Workshop Report at George Washington Law School, Washington D.C, 23 of October 2014, January 2015, pp. 2-43.

Ekwere, K., “Submarine Cables and the Marine Environmental: Enhancing Sustainable and Harmonious Interactions”, China Oceans Law Review, vol. 2016, Issue 1, 2016, pp. 129-186.

Shvets, D., “Law of the Sea and Environmental Law acting together: Experience of laying submarine cable in the Arctic”, Revista Catalana de Dret Ambiental, vol. 9, No. 2, 2018, pp. 1-36.

E) OTHER ASPECTS

Burnett, D., “Recovery of Cable Repair Ship Cost Damages from Third Parties That Injure Submarine Cables”, Tulane Maritime Law Journal, vol. 35:103, 2010, pp. 103-123.

Howland, D., “The limits of international agreement: Belligerent rights vs. submarine cable security in the nineteenth century”, 2017, Jus Gentium: Journal of International Legal History, vol. 2(1), pp. 67-92.

Rylova, M., Shvets, D., “The International Legal Regime of Submarine Cables: the First Arctic Experience”, Ecological Law No. 1, 2018, pp. 31-37.

Shvets, D., “The Legal Regime of Submarine Telecommunications Cables in the Arctic: Present State and Challenges” in Digitalisation and Human Security—A Multi-Disciplinary Approach to Cybersecurity in the European High North, edited by Salminen, M., Zojer, G., and Hossain, K., Cham: Palgrave Macmillan, 2020, pp. 175-203.

355

Takei, Y., “Law and Policy for International Submarine Cables: An Asia-Pacific Perspective”, Asian Journal of International Law, vol. 2, 2012, pp. 205-204.

VI. LAW OF TELECOMMUNICATIONS

A) GENERAL ASPECTS

Khanna, P., Connectography: mapping the future of global civilization, First edition, New York: Random House, 2016.

Von Schorlemer, S., “Telecommunications, International Regulation”, MPEPIL, 2009.

Wopschall, R., “The Outer Side of Communication: Guardians of Global Connectivity”, The Fletcher Forum of World Affairs, vol. 41, Issue 1, 2017, pp. 49-58.

B) INTERNET GOVERNANCE

Brunet, P., Tiemtoré, O., Vettraino-Soulard, M., Ethics and the Internet in West Africa: Toward an Ethical Model of Integration, Trenton: Africa World Press, Inc., 2004.

Gillies, J., Cailliau, R., How the Web was Born: The Story of the World Wide Web, New York: Oxford University Press, 2000.

Klabbers, J., “The Paradox of International Institutional Law”, International Organizations Law Review, vol. 5, 2008, pp. 1-23.

Kingsbury, B., Krisch, N., Stewart, R. B., “The emergence of global administrative law”, Law and Contemporary Problems, vol. 68:15, 2005, pp. 15-61.

Kurbalija, J., An Introduction to Internet Governance: 7th edition, Switzerland: DiploFoundation, 2016.

Main, L., “The global information infrastructure: empowerment or imperialism?”, Third World Quarterly, vol. 22, No 1, 2001, pp. 83-97.

Starosielski, N., “Internet Infrastructure: Where foreign affairs and the climate crisis intersect”, International Cable Protection Committee website, section “Publications”, 2019.

Turner, C., Johnson, D., Global infrastructure networks, Northampton: Edward Elgar Publishing Limited, 2017.

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VII. INTERNATIONAL ENVIRONMENTAL LAW

A) GENERAL ASPECTS

Alam, S., Bhuiyan, J.H., Chowdhury, T., Techera, E. J., Routledge Handbook of International Environmental Law, London and New York: Taylor & Francis Group, 2013.

B) OIL AND GAS ACTIVITIES

Hughes, H., M., “Recent Regulatory and Legislative Developments of Interest to Oil and Gas Lawyers”, Alberta Law Review, vol. 43, Issue 1, 2005, pp. 183-228.

Trevisanut, S., “The Role of Private Actors in Offshore Energy: Shifting Models of Participation” in Bankes, N., Trevisanut, S., Energy from the Sea: An International Law Perspective on Ocean Energy, Leiden, Boston: Brill Nijhoff, 2015, pp. 85- 105.

C) ARCTIC ISSUES

Bannerman, N., “Connecting beneath the ice” Capacity, vol. 18, Issue 5, 2018, pp. 36-38.

Delaunay, M., “Briefing Note Submarine Cables: Bringing Broadband Internet to the Arctic, a Life Changer for Northerners?”, Arctic Yearbook 2017, pp. 2-10.

Macnab, R., “Nationalizing the Arctic Maritime Commons: UNCLOS Article 76 and the Polar Sea”, Yearbook of Polar Law, vol. 2, 2010, pp. 171-188.

VIII. CYBER LAW

Sechrist, M., “Cyberspace in Deep Water: Protecting Undersea Communication Cables by Creating an International Public-Private Partnership”, Harvard Kennedy School, 23 of March 2010.

Kurbalija, J., “E-Diplomacy and Diplomatic Law in the Internet Era” in Ziolkowski, K. (eds.) Peacetime Regime for State Activities in Cyberspace International Law, International Relations and Diplomacy, Tallinn: NATO CCD COE Publication, 2013, pp. 393-424.

Schmitt, M. N., Tallinn Manual 2.0 on the international law applicable to cyber operations, New York: Cambridge University Press, 2017.

IX. INTERNATIONAL LAW ACTORS

Ben-Ari, R., The Legal Status of International Non-Governmental Organizations. Analysis of Past and Present Initiatives (1912-2012), Leiden: Martinus Nijhoff Publishers, 2013.

357

Cogolati, S., Wouters, J., The Commons and New Global Governance, Glos: Edward Elgar Publishing Limited, 2018.

Goodwin-Gill, G., “The search for the one true meaning…”, in Goodwin-Gill, G. and Lambert, H. (eds.), The Limits of Transnational Law: Refugee Law, Policy Harmonization and Judicial Dialogue in the European Union, Cambridge: Cambridge University Press, 2010.

Jessup, P., Transnational law, New Haven: Yale University Press, 1956.

Letsas, G., “The ECHR as a living instrument: its meaning and legitimacy” in Føllesdal, A., Peters, B., and Ulfstein, G. (eds.), Constituting Europe. The European Court of Human Rights in a National, Regional and Global Context, Cambridge: Cambridge University Press, 2013, pp. 106–141.

Nowrot, K., ”Legal Consequences of Globalization: The Status of Non- Governmental Organizations under International Law", Indiana Journal of Global Legal Studies, vol. 6, No. 2, 1999, pp. 579-646.

Oström, E., Gardner, R., “Coping with Asymmetries in the Commons: Self- Governing Irrigation Systems Can Work”, Journal of Economic Perspectives, vol. 7, Issue 4, 1993, pp. 93–112.

Parmentier, R., “Role and Impact of International NGOs in Global Ocean Governance”, Ocean Yearbook 26, 2012, pp. 209-229.

Schamalembach, K., “International Organizations or Institutions, General Aspects”, MPEPIL, 2014.

Shamima, A., Potter, D., NGOs in international politics, Bloomfield: Kumarian Press, 2006.

Zarei, M. H., Safari, A., “The Status of Non-State Actors under the International Rule of Law: A Search for Global Justice”, Rethinking International Law and Justice journal, vol. 233, 2015, pp. 1-25.

X. SOFT LAW

Crawford Lichtenstein, C., “Hard Law v. Soft Law: Unnecessary Dichotomy”, The International Lawyer, vol. 35, 2001, pp. 1433-1441.

Gamble, J. K., “The 1982 United Nations Convention on the Law of the Sea as Soft Law”, Houston Journal of International Law, vol. 8, 1985, pp. 37-47.

Gold, J., ”Strengthening the Soft International Law of Exchange Arrangements”, American Journal of International Law, vol. 77, Issue 3, 1983, pp. 443-489.

358

Gruchalla-Wesierski, T., “Framework for Understanding Soft Law”, McGill Law Journal, vol. 30, 1984, pp. 37-88.

Klabbers, J., “The Redundancy of Soft Law”, Nordic Journal of International Law, vol. 65, 1996, pp. 167-182.

Weil, P., “Towards Relative Normativity in International Law”, American Journal of International Law, vol. 77, Issue 3, 1983, pp. 413-442.

359

DOCUMENTARY SOURCES

I. MULTILATERAL INTERNATIONAL TREATIES

Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea, concluded 11 of December 2008, C.N.563.2012.TREATIES-XI.D.8 (not yet in force).

Protocol to the Convention For The Suppression Of Unlawful Acts Of Violence Against The Safety Of Maritime Navigation, concluded 14 of October 2005, entered into force 1 of November 2005, IMO Doc. LEG/CONF.15/21.

Convention on the Protection of the Underwater Cultural Heritage, concluded 2 of November 2001, entered into force 2 of January 2009, 2562 UNTS.

Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, adopted 7 of November 1996, entered into force 24 of March 2006, 36 ILM 1 (1996).

Agreement for the Implementation of the Provisions of the UN Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, adopted 4 of August 1995, entered into force 11 of December 2001, UNTS, vol. 2167, p. 3.

Agreement relating to the implementation of Part XI of the UN Convention on the Law of the Sea of 10 December 1982, Doc. A/RES.48/263, adopted in New York on 28 of July 1994, entered into force on 16 November 1994, UNTS, vol. 1836, p. 3.

Energy Charter Treaty, concluded 17 of December 1994, entered into force 16 of April 1996, 2080 UNTS 95; 34 ILM 360 (1995).

Rio Declaration on Environment and Development, adopted 13 of June 1992, UN Doc. A/CONF.151/26 (vol. I); 31 ILM 874 (1992).

Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation 1678, concluded 10 of March 1988, entered into force 1 of March 1992, 27 ILM 668, 1988; 1678 UNTS 221.

Convention on the Law of the Sea, concluded 10 of December 1982, entered into force 16 of November 1994, 1833 UNTS 3; 21 ILM 1261, 1982.

Convention on Contracts for the International Sale of Goods, adopted on 10 of April 1980, entered into force 1 of January 1988, S. Treaty Doc. 98-9 (1983); A/CONF.97/18 (1980); 19 ILM 668 (1980); 52 Fed. Reg. 6262-6280, 7737 (1987); 1489 UNTS 3.

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Protocol to the SOLAS, concluded 17 of February 1978 by the International Conference on Tanker Safety and Pollution Prevention, entered into force 1 of May 1981; 1226 UNTS 237.

Convention on Standards of Training, Certification and Watchkeeping for Seafarers, concluded 7 of July 1978 in London, entered into force 28 of April 1984, IMO publication IMO IС938R: «CPI Books Limited», Reading RG1 8EX. 2011 (1361 UNTS 2).

Additional Protocol to Geneva Conventions of 12 August 1949 relating to the Protection of Victims of International Armed Conflicts (Protocol I), concluded on 12 of December 1977, entered into force on 7 of December 1978, UNTS vol. 1125 (p. 3).

Convention on Limitation of Liability for Maritime Claims, concluded 19 of November 1976, entered into force 1 of December 1986, 1456 UNTS 221;16 ILM 606, 1977.

Convention for the Safety of Life at Sea 1974, concluded 1 of November 1974, entered into force 25 of April, 1980, 32 UST 47; 1184 UNTS 278.

Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, concluded 13 of November 1972, entered into force 30 of August 1975, 26 UST 2403, 1046 UNTS 120, 11 ILM 1294, 1972.

Convention on the International Regulations for Preventing Collisions at Sea, concluded 20 of October 1972, entered into force 15 of July 1977, 1050 UNTS 16.

Convention on the Law of Treaties, concluded 23 of May 1969, entered into force 27 of January, 1980, 1155 UNTS 331, 8 I.L.M. 679.

Convention on the Continental Shelf 1958, concluded 29 of April 1958, entered into force on 10 of June 1964, 15 UST 471; 499 UNTS 311 (Article 4).

Convention on the High Seas, concluded in Geneva on 29 of April 1958, entered into force 30 of September 1962, UNTS, vol. 450, p. 11.

Convention relating to the Limitation of the Liability of Owners of Sea-Going Ships, concluded 10 of October 1957, entered into force 31 of May, 1968, 1412 UNTS 1-23642, 1957.

Statute of the International Court of Justice, 18 of April 1946, 33 UNTS 993, UKTS 67 (1946).

Convention for the Unification of Certain Rules of Law relating to Bills Of Lading and Protocol of Signature, concluded 25 of August 1924, entered into force on 2 of June 1931 (The Hague Rules), as amended by the Protocol of 23 February 1968 (Visby Rules).

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Convention for the Protection of Submarine Telegraph Cables 1884, concluded in Paris on 14 of March 1884, entered into force on 1 of May 1888, 163 CTS 391.

International Telegraph Convention, concluded 17 of May 1865, British and Foreign State Papers, vol. 56, p. 294.

II. SOFT LAW DOCUMENTS

A) PRIVATE INRTERNATIONAL LAW AGREEMENTS

Articles of Association of Vodafone Group Public Limited Company, signed 27 of July 2018, available at https://www.vodafone.com/content/dam/vodcom/files/board/20180727_VGPl c_Articles_of_Association1.pdf.

Global Marine, South East Asia and Indian Ocean Cable Maintenance Agreement, available at http://www.globalmarine.co.uk/news/south-east-asia-and-indian- ocean-cable-maintenance-agreement-extended-until-end-2017.html.

Management of Redundant and Out-of-Service Cables, International Cable Protection Committee, ICPC Recommendation No. 1, Issue: 13, 2016, available at http://www.sargassoseacommission.org/storage/documents/Recommendation_0 1_Iss_12B.pdf.

Agreement between and among the Oregon Fishermen’s Undersea Cable Committee, Inc., MFS Globenet, Inc. and WCI Cable Inc., concluded 11 of January 2000, available at http://www.ofcc.com/mfsg_web_version.pdf.

Agreement for the Maintenance of Pacific Ocean Cable Systems in the Yokohama Zone, concluded in 1997, available at http://yokohamazone.com/index.php.

Competition Law Code of Conduct of the ICPC, available at https://www.iscpc.org/documents/?id=7.

ICPC Membership Agreement, available at https://www.iscpc.org/documents/?id=12.

Pacific and Indian Ocean Cable Mutual Agreement, available at http://piocma.com/piocma_overview.htm.

B) ICPC MATERIALS

Veverka, D., “Submarine Cables: O&M and Cable Maintenance”, Report at Pacific Telecommunications Council (Part 2), International Cable Protection Committee, 18 of January 2015, available at https://online.ptc.org/assets/uploads/papers/ptc16/SUN_Submarine%20Cable %20WS_Veverka%20Dean.pdf.

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Rapp, R. J., “Protection for Vessels Engaged in Servicing Submarine Cables Proposed”, International Cable Protection Committee materials, Brief to Navigation Safety Advisory Council, November 28, 2012, Tampa, available at https://homeport.uscg.mil/Lists/Content/Attachments/755/Protection%20of% 20Vessels%20Engaged%20in%20Servicing%20Submarine%20Cables%20- %20November%202012%20meeting.pdf.

Carter, L., Marle, G., Burnett, D., “About Submarine Telecommunications Cables”, International Cable Protection Committee publications, 2011, available at https://www.iscpc.org/documents/?id=1753.

Graham, M., Carter, L., Burnett, D., “About Submarine Power Cables”, International Cable Protection Committee materials, 2011, available at www.iscpc.org.

Drew, S., Hopper, A., “Catch fish, not Cables! Fishing and submarine cables working together” (Second edition), International Cable Protection Committee publications, 2009.

C) STATEMENTS OF NON-GOVERNMENTAL ORGANIZATIONS

Commercial Crime Services, “Live piracy & Armed robbery report”, 6 of June 2015, available at https://www.icc-ccs.org/index.php/piracy-reporting- centre/live-piracy-map/details/146/1020.

Communications Security, Reliability and Interoperability Council, Working Group on Submarine Cable Routing And Landing, “Final Report – Protection of Submarine Cables Through Spatial Separation”, December 2014, available at https://transition.fcc.gov/pshs/advisory/csric4/CSRIC_IV_WG8_Report1_3De c2014.pdf.

Council for Security Cooperation in the Asia Pacific, Memorandum No.24 “Safety and Security of Vital Undersea Communications Infrastructure”, 2014, available at http://www.cscap.org/uploads/docs/Memorandums/CSCAP%20Memorandum %20No.24%20-%20Safety%20and%20Security%20of%20Vital%20Undersea.pdf.

Declaration to the International Energy Charter Treaty, Consolidated Energy Charter Treaty With Related Documents, last updated 15 of January 2016, available at https://energycharter.org/fileadmin/DocumentsMedia/Legal/ECTC-en.pdf.

International Law Association, “Statement of Principles Applicable to the Formation of General Customary International Law (explanation in North Sea Continental Shelf cases)”, Final Report of the Committee on the Formation of Customary (General) International Law), Report of the Sixty-Ninth Conference, London, 2000, available at https://www.law.umich.edu/facultyhome/drwcasebook/Documents/Documents

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/ILA%20Report%20on%20Formation%20of%20Customary%20International%2 0Law.pdf.

D) CONTRIBUTIONS OF OTHER INSTITUTIONS

Scrimgeour, R., Fletcher, R., Martin, J., Fletcher, S., A review of area-based planning tools. What is the potential for cross-sectoral planning in areas beyond national jurisdiction?, Cambridge (UK): UN Environment World Conservation Monitoring Centre, 2018.

Davies, R., “Broadband as a universal service”, European Parliamentary Research Service Briefing, 2016. Members' Research Service, European Parliament, available at http://www.europarl.europa.eu/RegData/etudes/BRIE/2016/581977/EPRS_BR I(2016)581977_EN.pdf.

Innis, L., Simcock, A., “World Ocean Assessment”, United Nations Global Reporting, , 2016, available at http://www.un.org/depts/los/global_reporting/WOA_RPROC/Chapter_19.pdf.

Kruger, L. G., “Internet Governance and the Domain Name System: Issues for Congress, Congressional Research Service, 7-5700, R42351”, summary, prepared for members and committees of congress, 2016, available at https://www.everycrsreport.com/files/20120209_R42351_8e4fd9328fcec7d96ff9 55899ea4ed8c189458e6.pdf.

Simcock, A., “Submarine Cables and Pipelines”, The First Global Integrated Marine Assessment by the Group of Experts of the Regular Process, United Nations, 2016, available at https://www.un.org/Depts/los/global_reporting/WOA_RPROC/Chapter_19.pd f.

Mittler, D., “Needed: A real Constitution for the Oceans!”, Greenpeace International, 2012, available at https://www.greenpeace.org/archive- international/en/news/Blogs/makingwaves/needed-a-real-constitution-for-the- oceans/blog/43448/.

Sear, D., Murdock, A., LeBas, T., Baggaley, P., Gubbins, G., “5883 Dunwich, Suffolk: Mapping and assessing the inundated medieval town”, GeoData Institute, National Oceonography Centre and others, Final report, 2011, available at http://www.dunwich.org.uk/resources/documents/dunwich_12_report.pdf.

Opperud, H., “Telecommunications Regulation Norway”, Advokatfirmaet Thommessen AS, Lex Mundi publication, 2010, available at http://www.lexmundi.com/Document.asp?DocID=1871.

Foster, V., Briceño-Garmendia, S., “Africa’s Infrastructure: A Time for Transformation”, a co-publication of the Agence Française de Développement and

365 the World Bank, December 1, 2009, available at http://documents.worldbank.org/curated/en/246961468003355256/pdf/521020 PUB0EPI1101Official0Use0Only1.pdf.

Esselaar, S., Gillwald, A., Sutherland, E., “The regulation of undersea cables and landing stations”, International Development Research Centre, available at http://www.cablesm.fr/2007_esselaar-et-al-2007-undersea-cables.pdf.

Kogan, I., Paull, C. K., Kuhnz, L., Burton, E. J., Von Thun, S., Greene, H. G., Barry, J. P., “Environmental Impact of the ATOC/Pioneer Seamount Submarine Cable”, Monterey Bay Aquarium Research Institute publication, 2003, available at https://nmsmontereybay.blob.core.windows.net/montereybay- prod/media/research/techreports/cablesurveynov2003.pdf.

E) MODEL CONTRACTS

Pipeline Crossing Agreement & Proximity Agreement Pack October 2015 (OP115), available at .

Model Contract with Guidelines for the Construction of a Submarine Cable System prepared by SubOptic, available at https://suboptic.org/wp- content/uploads/2014/10/Model%20Contract%20Contract%20with%20Guidelin es%20for%20the%20Construction%20of%20a%20Submarine%20Cable%20Syste m.dot.

Norwegian Subsea Contract NSC 05, Conditions Of Contract, a model contract developed by companies Statoil, Stolt Offshore, Subsea 7 and Technip Offshore Norge, April 2005, available at https://www.mercell.com/m/file/GetFile.ashx?id=68798217&version=0.

Yellow Book (Conditions of Contract for Plant and Design-Build), FIDIC, first edition, 1999, ISBN13: 978-2-88432-082-5.

III. DOCUMENTS OF INTERNATIONAL ORGANIZATIONS

A) UNITED NATIONS

a) General Assembly

Resolution A/RES/65/37, “Oceans and the law of the sea”, adopted 7 of December 2010, available at https://www.un.org/en/development/desa/population/migration/generalassemb ly/docs/globalcompact/A_RES_65_37.pdf.

Resolution 69/292: “Development of an internationally binding instrument under the UN Convention of the Law of the Sea on the conservation and sustainable use

366 of marine biological diversity of areas beyond national jurisdiction”, 2005, available at https://undocs.org/en/A/RES/69/292.

b) Economic and Social Council

Hongbo, W., Opening Statement at the Regional Meeting for Africa for the 2012 ECOSOC Annual Ministerial Review, Dar es Salaam, 14 of March 2013, UN, available at http://www.un.org/en/ecosoc/newfunct/pdf13/wipo_ecosoc_amr_dar_13_f_w u.pdf.

c) Division for Ocean Affairs and the Law of the Sea

Division for Ocean Affairs and the Law of the Sea, The law of the sea: national legislation on the territorial sea, the right of innocent passage, and the contiguous zone, New York: United Nations, 1995.

Office for Ocean Affairs and the Law of the Sea, The Law of the Sea: Practice of Archipelagic States, New York: United Nations, 1992, available at http://www.un.org/Depts/los/LEGISLATIONANDTREATIES/PDFFILES/p ublications/E.92.V.3.pdf.

Division for Ocean Affairs and the Law of the Sea, consolidated table of ratifications/accessions, available at http://www.un.org/depts/los/reference_files/status2010.pdf.

d) Third United Nations Conference on the Law of the Sea

A/CONF.62/L.22 (1978), IX Official Records 180 (Peru). Introduced at the 91st plenary meeting (1978), paragraph 3, IX Official Records 17.

A/CONF.62/L.23 (1978), IX Official Records 181 (Portugal). Introduced at the 96th plenary meeting (1978), paragraph 34, IX Official Records 34.

Denmark ([1977]), mimeo.), Article 67 (RSNT II). Reproduced in IV Platzöder 470.

The Main Trends Working paper A/CONF.62/L.8/Rev.1 (1974), Annex II, Appendix I [A/CONF.62/C.2/WP.1], Provision 151, III Off. Rec. 93, 107, 131 (Rapporteur-general) [Main Trends].

A/AC.38/SC.II/L.34, part 2, paragraphs (4) and (6), reproduced in III SBC Report 1973, at 71, 73 (China).

Working paper by Malta A/AC.138/53, Article 28, reproduced in SBC Report 1971, at 105, 127 (Malta).

A/AC.138/53, Article 28, reproduced in SBC Report 1971, at 105, 127 (Malta).

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Second Committee UNCLOS I, Summary Records of the 26th-30th Meetings, UN Doc. A/CONF.13/C.2/SR.26-30 (1958), OR VI, 72, 87-90.

A/ CONF.13/C.4/SR.26-30 (1958), OR VI, 73, 78 (27th Meeting, paragraph 28) (USA).

e) Human Rights Council

Human Rights Council, Thirty-second session Agenda, item 3 Promotion and protection of all human rights, civil, political, economic, social and cultural rights, including the right to development, 2016, available at https://www.article19.org/data/files/Internet_Statement_Adopted.pdf.

f) Other documents

Cooperation Agreement Between the United Nations and the Inter-Parliamentary Union, available at https://master-7rqtwti-gcaqeen3me7bi.eu- 2.platformsh.site/file/2457/download?token=slvtLrQc.

B) INTERNATIONAL MARITIME ORGANIZATION (IMO)

IMO, Report to the Maritime Safety Committee NCSR 3/29, dated 22 of March 2016, Sub-Committee on navigation, communications and search and rescue, 3rd session, Agenda item 29, available at https://www.maritimenz.govt.nz/IMO/documents/NCSR-3-report.pdf.

IMO, The IMLI Manual on International Maritime Law: The Law of the Sea, IMO Publications, Oxford: Oxford University Press, vol. I., 2014.

IMO, Circular SN.1/Circ.282 on the Prohibition of Anchoring in the Straits of Malacca and Singapore, 27 of November 2009, Ref. T2-OSS/2.7.1, available at https://cil.nus.edu.sg/wp-content/uploads/2009/10/SN-1-Circ-282- INFORMATION-CONCERNING-ANCHORING-IN-THE-TSS-IN-THE- SOMS.pdf.

IMO, Annex 24 to Resolution MSC. 232(82), concluded 5 December 2006, Adoption of the Revised Performance Standards For Electronic Chart Display And Information Systems (ECDIS), available at http://www.imo.org/en/KnowledgeCentre/IndexofIMOResolutions/Maritime- Safety-Committee-(MSC)/Documents/MSC.232(82).pdf.

IMO Standard Marine Communication Phrases NAV 46/INF.4, 4 of April 2000, International Maritime Organization, Sub-Committee on Safety of Navigation 46th session, Agenda item 9, (SMCP), available at http://www.segeln.co.at/media/pdf/smcp.pdf.

368

IMO, Status of Treaties, available at http://www.imo.org/en/About/Conventions/StatusOfConventions/Documents /StatusOfTreaties.pdf.

C) INTERNATIONAL TELECOMMUNICATION UNION (ITU)

ITU-T G.977.1 (Under study 2017-2020), Transverse compatible DWDM applications for repeatered optical fibre submarine cable systems, SG15: Q8/15, available at https://www.itu.int/ITU-T/workprog/wp_item.aspx?isn=13457.

ITU-T G.971, 2016, Access to Submarine Cables: Guidelines, Harmonization of ICT Policies in Sub-Saharan Africa HIPSSA, available at https://www.itu.int/rec/T-REC-G.971/en.

ITU-T G.972, 2016, Definition of terms relevant to optical fibre submarine cable systems, October, available at https://www.itu.int/rec/T-REC-G.972-201611-I.

ITU-T, T13-SG15 Contribution 1218: Proposal to initiate the discussions about the work item of using submarine cable network for climate monitoring and disaster prediction, Meeting Documents, 2015, available at https://www.itu.int/md/T13-SG15-C-1218.

ITU-T Manual CH-1211, 2009, Optical fibres, cables and systems, , available at https://www.itu.int/dms_pub/itu-t/opb/hdb/T-HDB-OUT.10-2009-1-PDF- E.pdf.

ITU-T SG 3, Contribution 7: Regulation of the market for capacity and submarine cable services, 2008, available at https://www.itu.int/md/T09-SG03-C-0007.

D) INTERNATIONAL SEABED AUTHORITY (ISA)

Draft Regulations on Exploitation of Mineral Resources in the Area, Twenty- fourth session of Legal and Technical Commission, part II Kingston, 2–13 of July 2018, Item 10 of the agenda, available at https://www.isa.org.jm/sites/default/files/files/documents/isba24-ltcwp1- en.pdf.

Submarine Cables and Deep Seabed Mining. Advancing Common Interests and Addressing LOSC “Due Regard” Obligations, Technical Study: No. 14, International Seabed Authority, 2015, available at https://www.isa.org.jm/sites/default/files/files/documents/techstudy14_web_27 july.pdf.

Memorandum of understanding between the ICPC and ISA, signed on behalf of the ICPC 25 of February 2010, by the ISA 15 of December 2009, available at https://www.isa.org.jm/sites/default/files/documents/EN/Regs/MOU- ICPC.pdf.

369

E) INTERNATIONAL HYDROGRAPHIC ORGANIZATION (IHO)

General Bathymetric Chart Of The Oceans (GEBCO), Thirty Fourth Meeting of the GEBCO Guiding Committee (GGC34), November 2017, available at https://www.gebco.net/about_us/meetings_and_minutes/documents/ggc34_rep ort_2017.pdf.

Agreement of cooperation between the IHO and the ISA, concluded 14 of July 2016 in Kingston, Jamaica, available at https://www.isa.org.jm/files/documents/EN/Regs/IHO-AoC.pdf.

Memorandum of understanding between the ICPC and IHO, signed 18 of April 2016, available at https://www.iho.int/mtg_docs/circular_letters/english/2016/Cl18e.pdf.

F) UNITED NATIONS EDUCATIONAL, SCIENTIFIC AND CULTURAL ORGANIZATION (UNESCO)

Howe, B., Panayotou, K., “Harnessing submarine cables to save lives”, The UNESCO Courier, e-ISSN 2220-2293, 2017, available at https://en.unesco.org/courier/2017-october-december/harnessing-submarine- cables-save-lives.

UNESCO/ITU/WMO/IOC, “The scientific and societal case for the integration of environmental sensors into new submarine telecommunication cables”, 2014, available at http://www.itu.int/dms_pub/itu-t/opb/tut/T-TUT-ICT-2014-03- PDF-E.pdf.

UNESCO, Section of Museums and Cultural Objects, “Information Brochure of UNESCO about the Convention on the Protection of the Underwater Cultural Heritage”, Introduction, SEP Nîmes, 2001, available at http://www.unesco.org/culture/underwater/infokit_en/.

G) UNITED NATIONS ENVIRONMENTAL PROGRAMM (UNEP)

Carter, L., Burnett, D., Drew, S., Marle, G., Hagadorn, L., Bartlett-McNeil, D., and Irvine, N., “Submarine Cables and the Oceans Connecting the World”, UNEP- WCMC, Biodiversity Series, No. 31, 2009, available at https://www.iscpc.org/documents/?id=132.

UNEP, “IEG of the Global Commons”, available at http://staging.unep.org/delc/ GlobalCommons/tabid/54404/Default.aspx.

H) INTERNATIONAL STANDARDIZATION ORGANIZATION (ISO)

ISO 14001:2015, Environment Management System Certification, 2015, available at https://www.iso.org/iso-14001-environmental-management.html.

370

I) FOOD AND AGRICULTURE ORGANIZATION (FAO)

FAO, “Code of Conduct for Responsible Fisheries”, Rome, 1995, available at http://www.fao.org/3/a-v9878e.pdf.

J) INTERNATIONAL ATOMIC AGENCY (IAA)

Information Circular, INFCIRC/205/Add. 1, 10 of January 1975, available at https://www.iaea.org/sites/default/files/publications/documents/infcircs/1974/i nfcirc205a1.pdf.

K) INTERNATIONAL LAW COMMISSION (ILC)

Draft Articles on the responsibility of international organizations, Article 2 (a), Yearbook of the International Law Commission, 2011, vol. II, part 2, available at http://legal.un.org/ilc/texts/instruments/english/draft_articles/9_11_2011.pdf.

Articles concerning the Law of the Sea with commentaries, Yearbook of the International Law Commission, 1956, vol. II, Commentary, available at http://legal.un.org/ilc/texts/instruments/english/commentaries/8_1_8_2_1956.p df.

IV. INTERNAL DOCUMENTS

A) AUSTRALIA

Telecommunications Legislation Amendment (Submarine Cable Protection) Act No.33, 2014, An Act to amend legislation relating to telecommunications, and for other purposes, available at https://www.legislation.gov.au/Details/C2014A00033.

Submarine Cable Information Sharing Project: Legislative Practices and Points of Contact, Cybersecurity Policy and Asia Pacific Section, Department of Broadband, Communications and the Digital economy, Telecommunications and Information Working Group, Australia, 2012, available at https://www.apec.org/- /media/APEC/Publications/2012/3/Submarine-Cable-Information-Sharing- Project/2012_tel_submarineproject.pdf.

Submarine Cable (Perth Protection Zone) Declaration 2007, Australian Communication and Media Authority, adopted 24 of September 2007, available at https://www.legislation.gov.au/Details/F2007L03914.

Submarine Cable (Northern Sydney Protection Zone) Declaration 2007, Australian Communications And Media Authority, adopted 6 of July 2007, available at https://www.legislation.gov.au/Details/F2007L02216. 371

Submarine Cable (Southern Sydney Protection Zone) Declaration 2007, Australian Communications And Media Authority, 12 of July 2007, available at https://www.legislation.gov.au/Details/F2007L02217.

Telecommunications and Other Legislation Amendment (Protection of Submarine Cables and Other Measures) Act, No. 104, 2005, Australian Government, available at https://www.legislation.gov.au/Details/C2005A00104.

Telecommunications Act 1997 No.47, Legislation Register, Schedule 3A, section 2, available at https://www.legislation.gov.au/Details/C2017C00179.

Submarine Cables and Pipelines Protection Act, No. 61, 1963, Australian Government, available at https://www.legislation.gov.au/Details/C2016C00970/Html/Text.

B) CHILE

Ley General De Telecomunicaciones, No. 18168, adopted 2 of October 1982, Ministerio De Transportes y Telecomunicaciones de Chile, available at https://www.leychile.cl/Navegar?idNorma=29591.

Reglamento General de Orden, Seguridad y Disciplina en las Naves y Litoral de la Republica, Nº 1.340 bis., adopted 14 of June 1941, National Ministry of Naval Defense of Chile, available at https://www.directemar.cl/directemar/site/artic/20170126/asocfile/2017012612 2607/tm_013__2012.pdf.

C) CHINA

Regulations of the Protection of Submarine Cables and Pipelines, Order No. 24, adopted 9 of January 2004, Ministry of Land and Resources of the People’s Republic of China.

Regulations of Permission on Delineation of Course for Laying, Maintaining, or Modifying Submarine Cables or Pipelines on the Continental Shelf of the Republic of China, Tai 89 Nei Tzu No. 02361, adopted 26 January 2000, Executive Yuan of the Republic of China (Taiwan), available at https://english.ey.gov.tw/News_Content.aspx?n=3FA02B129BCA256C&sms=92 5E4E62B451AB83&s=FE5BD0066AFE28EC.

D) COLOMBIA

Resolution under which security areas are established along the lines of submarine cables in Colombian waters, No. 204, adopted 19 of April 2012, National Defense Ministry, National Navy, General Maritime Direction of the Republic of Colombia, Official Journal No. 48.410, Article 1.

372

Criminal Code of Colombia, Ley 599, adopted 24 of July 2000, Colombian Congress, Diario Oficial No. 44097 del 24/07/2000.

E) DENMARK

Act on Safety at Sea (Lov om Sikkerhed til Søs), Consolidated Act no. 72, adopted 12 of July 2007, Danish Maritime Authority, available at https://www.dma.dk/Vaekst/Rammevilkaar/Legislation/Acts/Promulgation%20 of%20the%20act%20on%20safety%20at%20sea.pdf.

Order on the Protection of Submarine Cables and Pipelines, No. 939, adopted 27 of November 1992, Danish Maritime Authority, available at https://www.dma.dk/Vaekst/Rammevilkaar/Legislation/Orders/Order%20on% 20the%20protection%20of%20submarine%20cables%20and%20pipelines.pdf.

F) FRANCE

Decision specifying the terms and conditions for accessing ultra-fast broadband optical fibre electronic communications lines on the whole territory except very high-density areas, No. 2010-1312, Electronic Communications and Postal Regulatory Authority, adopted 14 of December 2010.

Code of Postal and Electronic Communications, adopted 4 of March 1952, published in Official Journal of the French Republic, France, 2004.

G) FINLAND

Northeast Passage telecommunications cable project, Reports 3-2016, Ministry of Transport and Communications of Finland, available at https://www.lvm.fi/documents/20181/880507/Reports+3-2016.pdf/db8fcdda- af98-4a50-950d-61c18d133f74.

H) GHANA

Regulation on protection of offshore operations and assets, adopted 27 of January 2012, made under the Ghana Shipping Act, Ghana Maritime Authority, available at https://www.ghanamaritime.org/uploads/Ghana%20Shipping%20(Protection%2 0of%20Offshore%20Operations%20and%20Assets)%20Regulations%202012%20 LI%202010.pdf.

I) HONG KONG

Information Note on Applying for Required Government Permits/Approvals/Visas to Carry out Works Related to Submarine Cable Systems within Hong Kong Waters, I0011 (16), adopted 2 of April 2016, Office of the Communications Authority of Hong Kong, available at https://www.coms- auth.hk/filemanager/statement/en/upload/392/i0011e.pdf.

Submarine Telegraph Ordinance, Cap. 497, adopted 27 of December 1996, paragraph 7, available at https://www.elegislation.gov.hk/hk/.

373

J) ICELAND

Regulation on the authorization of laying of submarine cables and underwater pipelines, No.600, adopted 23 of May, 2018, Ministry of the Environment and Natural Resources of Iceland, available at https://www.reglugerd.is/reglugerdir/allar/nr/600-2018.

Act On Marine And Coastal Antipollution Measures, No. 33, 2004, Icelandic Transport Authority, available at https://www.icetra.is/media/english/Act_33_2004-on-Marine-And-Coastal-Anti- pollution-Measures.pdf.

Electronic Communications Act, No. 81, adopted 26 of March 2003, Ministry of Interior of Iceland, entered into force 25 of July 2003, Iceland, EEA legislation: Annex XI, Regulation 2887/2000/EC, Directives 1999/5/EC, 2002/19/EC, 2002/20/EC, 2002/21/EC, 2002/22/EC, 2002/58/EC and 2002/77/EC, available at https://www.unodc.org/res/cld/document/isl/1940/electronic- communications- act_html/Iceland_Electronic_Communications_Act_No._81_26_March_2003.pdf

K) INDIA

Ensuring Secure Seas: Indian Maritime Security Strategy, Indian Navy Naval Strategic Publication (NSP) 1.2, adopted in October 2015, Directorate of Strategy, Concepts and Transformation, Integrated Headquarters, Ministry of Defence (Navy) of India, Section “Maritime Economy”, available at https://www.indiannavy.nic.in/sites/default/files/Indian_Maritime_Security_Stra tegy_Document_25Jan16.pdf.

L) JAPAN

Telecommunications Business Law, No. 86, adopted 25 of December 1984, amended by Law No. 125 of 24 of July 2003, Ministry of Internal Affairs and Communications of Japan.

M) MALDIVES

Maritime Zone of Maldives, Act №6/96, Maldives, available at http://www.vertic.org/media/National%20Legislation/Maldives/MV_Maritime_ Zones_Act.pdf.

N) MEXICO

Law on Exclusive Economic Zone, International Legal Materials, vol. 15, Issue 2, 1976, pp. 382-384, 15 I.L.M. 382 (1976).

O) NEW ZEALAND

Telecommunications Act 2001, Public Act No.103, adopted 19 of December 2001, Ministry of Business, Innovation, and Employment, available at

374 http://www.legislation.govt.nz/act/public/2001/0103/latest/whole.html#DLM1 24974.

Submarine Cables and Pipelines Protection, Act No. 22, New Zealand, 1996, adopted 16 of May 1996, Ministry of Transport, section 2 “Interpretation”, available at http://www.legislation.govt.nz/act/public/1996/0022/latest/DLM375803.html.

Electricity Act 1992, Public Act No.122, 1992, adopted 17 of December 1992, Ministry of Business, Innovation, and Employment, available at http://www.legislation.govt.nz/act/public/1992/0122/119.0/whole.html#DLM2 81866.

P) OMAN

Draft Regulation on Submarine Cables, Telecommunications Regulatory Authority of Oman, 2015, available at https://tra.gov.om/pdf/submarine-cables%20public- regulation-En.pdf.

Q) RUSSIAN FEDERATION

Government Regulation of the Russian Federation “Ob utverzdenyi polozhenia o stroitelstve y ekspluatatsii linyi svyazi pri peresechenii gosudrstvennoy granitsy Rossiyskoi Federatsii na prihranichnoy territorii, vo vnutrennyh morskih vodah y v territorialnom more Rossiiskoy Federatsii” № 610, adopted 9 of November 2004, Collection of Legislation of the Russian Federation №46 (part 2), 2004, Art. 4531.

Code Of Administrative Offences Of The Russian Federation, No. 195-FZ, adopted 20 of December 2001, State Duma and Council of Federation, Article 9.7, available at http://www.wipo.int/edocs/lexdocs/laws/en/ru/ru073en.pdf.

Federal Law On the Exclusive Economic Zone of the Russian Federation, adopted 17.12.1998 N 191-FZ, first published in Collection of Legislation of the Russian Federation, December 21, 1998, No. 51, art. 6273, Rossiyskaya Gazeta, No. 244, December 24, 1998.

Criminal Code of the Russian Federation, No. 63-FZ, adopted 13 of June 1996, State Duma and Council of Federation, available at https://www.wto.org/english/thewto_e/acc_e/rus_e/WTACCRUS48_LEG_6.p df.

Regulation of the Russian Federation “Ob utverzdenyi pravil okhrany linyi y sooruzheniy svyazi Rossiiskoy Federatsii” № 578П, adopted 9 of June 1995, Government of the Russian Federation, Article 2396, Collection of Legislation of the Russian Federation 1995, №25.

Federal Law On the Continental shelf, adopted 30.11.1995 N 187-FZ, first published in Collection of Legislation of the Russian Federation, 04.12.1995, N 49, art. 4694, Rossiyskaya Gazeta, N 237, 07.12.1995.

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Federal Law On Environmental Impact Assessment, adopted on 23 of November 1995 No. 174-FZ, first published in Collection of Legislative Acts of the Russian Federation, 1995, No. 48.

R) SINGAPORE

Guidelines On Deployment Of Submarine Cables Into Singapore, adopted 1 October 2016, Info-communications Media Development Authority (IMDA) of Singapore, available at https://www.imda.gov.sg/-/media/imda/files/regulation- licensing-and-consultations/codes-of-practice-and- guidelines/subcablelanding.pdf?la=en.

Guidelines On Submarine Cable Repair Into Singapore, adopted 1 October 2016, Info-communications Media Development Authority (IMDA) of Singapore, available at https://www.imda.gov.sg/-/media/imda/files/regulation-licensing- and-consultations/codes-of-practice-and-guidelines/subcablerepair.pdf?la=en.

Guidelines For Submarine Cable Deployment into Singapore, IDA, 2010, available at http://www.submarinenetworks.com/images/figures/GUIDELINES- SINGAPORE.pdf.

S) UNITED KINGDOM

Submarine Telegraph Act, Regnal 48 and 49 Vict. United Kingdom, 1885, available at http://www.legislation.gov.uk/ukpga/1885/49/pdfs/ukpga_18850049_en.pdf.

T) UNITED STATES

Matis, M., The Protection of Undersea Cables: A Global Security Threat, United States Army War College, 2012.

Hagadorn, L., Statement before the Division of State Lands and the Department of Land Conservation and of the State Oregon regarding proposed administrative rules for granting easements for fibre optic and other cables on state-owned submerged and submersible land within the territorial sea and tidally influenced waters, United States, 1999, available at http://sdb0947dd74429a3f.jimcontent.com/download/version/1231428094/mod ule/499773613/name/Doc_1.2.1.1.1.1.-7.pdf.

Department of State Dispatch Supplement. vol. 6, No. 1, published by the Bureau of Public Affairs, United States, 1995, available at http://dosfan.lib.uic.edu/ERC/briefing/dispatch/1995/html/Dispatchv6Sup1.ht ml.

Submarine Cable Act, U.S. Code, Title 47, Chapter 2, paragraph 21, adopted 18 of February 1888 (as amended), 50th United States Congress, available at https://www.law.cornell.edu/uscode/text/47/21.

Henkin, L., Lowenfeld, A. F., Sohn, L. B., Vagts, D. F., Restatement (Third) of Foreign Relations Law of the United States, American Law Institute, vol. 1 (1987).

376

Presidential Proclamation 2667 “Policy of the United States With Respect to the Natural Resources of the Subsoil and Sea Bed of the Continental Shelf”, September 28, 1945.

New Jersey Administrative Code 7:7, Coastal Zone Management Rules, Statutory authority: N.J.S.A. 13:19-1 et seq.; 12:3-1 et seq., 12:5-3; 13:9A-1 et seq., section 7:7-12.21 “Submerged cables”, available at http://www.nj.gov/dep/rules/rules/njac7_7.pdf.

U) URUGUAY

Maritime Provision on the Limitation on Use of Fishing Gear in the Following Areas, No. 128, adopted 22 of February 2011, National Naval Prefecture of the Republic of Uruguay.

V) VIETNAM

Directive on Strengthening the Protection of Submarine Cables and Ensuring the Safety of International Telecommunications, No. 30/2007, adopted 13 of December 2007, Prime Minister of the Socialist Republic of Vietnam.

VII. NEWS ARTICLES

Axe, D., “The Navy’s underwater eavesdropper”, Reuters, July 19, 2013, available at http://blogs.reuters.com/great-debate/2013/07/18/the-navys-underwater- eavesdropper/.

BBC News, “Asia communications hit by quake”, 27 of December, 2006, available at: http://news.bbc.co.uk/2/hi/asia-pacific/6211451.stm.

BBC News, “Severed Cables Disrupt Internet”, 31 of January, 2008, available at http://news.bbc.co.uk/2/hi/technology/7218008.stm/

BBC News, “Work Begins To Repair Severed Neе”, 2008, available at: http://news.bbc.co.uk/2/hi/technology/7228315.stm.

Brunei Press, “Vietnam makes more arrests over submarine cable theft”, 25 of June 2007, available at http://www.brusearch.com/news/11336.

Ewudolu, S-M., “Undersea cable faults cause Internet chaos in Vietnam, Cambodia & Lao PDR”, Submarine Telecoms Forum, 2 of June 2020, available at https://subtelforum.com/cable-faults-impact-internet-in-vietnam-cambodia-laos/, last visited 20/06/2020.

Gibbons-Neff, T., “As Russia scopes undersea cables, a shadow of the United States’ Cold War past”, The Washington Post, October 26, 2015, available at https://www.washingtonpost.com/news/checkpoint/wp/2015/10/26/as-russia- scopes-undersea-cables-a-shadow-of-the-united-states-cold-war- past/?utm_term=.3fe9ab62498b.

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Glover, B., “CS Cambria”, History of the Atlantic Cable & Undersea Communications from the first submarine cable of 1850 to the worldwide fibre optic network”, The Atlantic Cable, available at http://atlantic- cable.com/Cableships/Cambria/.

Grubb, B., “Australian internet connections slowed down by submarine cable fault”, The Sydney Morning Herald №12, 2014, available at https://www.smh.com.au/technology/australian-internet-connections-slowed- down-by-submarine-cable-fault-20141202-11yc8m.html.

HostingManager, “Soobcheniya v glubine: udivitelnaya istoriya podvodnogo cabelya”/Communications in the depth: an amazing history of submarine cable, 9 of January, 2015, available in Russian at https://habrahabr.ru/company/ua- hosting/blog/247471/.

Johnson B., “How One Clumsy Ship Cut Off the Web For 75 Million People”, The Guardian, 1 of February, 2008, available at https://www.theguardian.com/business/2008/feb/01/internationalpersonalfinan cebusiness.internet/.

Kennedy, M., “Archaeologists map lost medieval Suffolk town of Dunwich under the sea”, The Guardian, May 2013, available at https://www.theguardian.com/science/2013/may/10/archaeologists-map- suffolk-dunwich-sea.

MacAskill, E., Borger, J., Hopkins, N., Davies, N., Ball, J., “GCHQ taps fibre- optic cables for secret access to world's communications”, The Guardian (International edition), 2013, available at https://www.theguardian.com/uk/2013/jun/21/gchq-cables-secret-world- communications-nsa.

Morris, B., “Submarine cables: a deep dive into underwater connectivity”, Tata Communications New World Blog, 28 of July, 2015.

Miller, R., “Google’s latest undersea cable project will connect Japan to Australia”, TechCrunch, 2018, https://techcrunch.com/2018/04/04/googles-latest-undersea- cable-project-will-connect-japan-to- australia/?guccounter=1&guce_referrer_us=aHR0cHM6Ly93d3cuZ29vZ2xlLmN vbS8&guce_referrer_cs=cQiMy2kqpNFpZpQ2MeBUi.

Qiu, W., “Submarine Cable Networks. Submarine Cables Cut After Taiwan Earthquake in Dec 2006”, BBC News, 11 of March, 2011, available at http://submarinenetworks.com/news/cables-cut-after-taiwan-earthquake-2006.

Sang-Hun C., Arnolddec W., ”Asian Quake Disrupts Data Traffic”, The New York Times, 28 of December, 2006, available at: http://www.nytimes.com/2006/12/28/business/worldbusiness/28quake.html.

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Submarine cable almanac, Submarine Telecoms Forum, issue 24, November 2017, Foreword, available at http://subtelforum.com/products/submarine-cable- almanac/.

Subsea World News, “Pirates Attack Cable Layer in Red Sea”, Subsea World News, 25 of July, 2016, available at https://subseaworldnews.com/2016/07/25/pirates-attack-cable-layer-in-red-sea/.

Zoethout, T., “The €1.5 bn Plan to Build an Artificial Island for Offshore Wind”, Elektor, February 28, 2018, available at https://www.elektormagazine.com/news/the-1-5-bn-plan-to-build-an-artificial- island-for-offshore-wind, last visited 13/03/2018.

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CITED JURISPRUDENCE

I. INTERNATIONAL COURT OF JUSTICE (ICJ)

Fisheries Jurisdiction Case (United Kingdom v. Iceland), ICJ Reports, 1974, pp. 8- 175.

Legality of the Use by a State of Nuclear Weapons in Armed Conflict, Advisory Opinion, I. C. J. Reports 1996.

North Sea Continental Shelf cases, ICJ Reports 1969, p. 43.

Nuclear Tests Case (Australia & New Zealand v. France, ICJ Reports, 1974. pp. 253-457.

Reparations for Inquiries Suffered in the Service of the UN (Advisory Opinion), 1949, ICJ Rep 174, 182.

II. INTERNATIONAL TRIBUNAL FOR THE LAW OF THE SEA (ITLOS)

Advisory opinion on case №21, Separate Opinion of judge Lucky, available at https://www.icj-cij.org/files/case-related/93/093-19960708-ADV-01-00-EN.pdf.

Advisory opinion on case No. 21, Separate Opinion of judge Paik, available at https://www.itlos.org/fileadmin/itlos/documents/cases/case_no.21/advisory_op inion_published/2015_21_SO_Paik-E.pdf.

III. COURT OF JUSTICE OF THE EUROPEAN UNION

Telefónica de España S.A. v. Ministry of the Environment, Supreme Court (Contentious-Administrative Division, 5th Chamber) Ruling JUR 2008/211246, 16 of June 2008.

IV. EUROPEAN COURT OF HUMAN RIGHTS

Loizidou v. Turkey, 23 March 1995, Series A no. 310.

Soering v. the United Kingdom, Soering v. the United Kingdom, 7 July 1989, Series A.

Tyrer v. the United Kingdom, 25 April 1978, Series A no. 26, p. 15, paragraph 31.

V. DOMESTIC COURTS

A) CANADA

Peracomo Inc. versus Société Telus Communications, case A-199-1, Federal Court of Appeal of Canada, 29 of June 2012, 2012 FCA 199.

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B) FRANCE

Case No 06/00229 DG/LM, Tribunal De Grande Instance De Boulogne Sur Mer (1st Chamber), 28 of August 2009.

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ONLINE RESOURCES

A) DATABASES

African Undersea and Terrestrial Fibre Optic Cables map, available at https://afterfibre.nsrc.org/.

Encyclopedia Britannica, available at https://www.britannica.com/technology/undersea-cable.

General Bathymetric Chart of the Oceans, available at https://www.gebco.net/about_us/overview/.

Science Dictionary, Free Online Science Dictionary, 2017, available at http://thesciencedictionary.org/submarine-cable/.

Submarine Cable Map by TeleGeography, an interactive submarine cables map based on authoritative Global Bandwidth research and updated on a regular basis, available at http://www.submarinecablemap.com.

The Great Soviet Encyclopedia (Bolshaya sovetskaya enciclopedia in Russian), available at https://bse.slovaronline.com/30434- PODVODNYY_KABEL_SVYAZI.

B) WEBSITES OF PRIVATE COMPANIES

AARNET, available at https://www.aarnet.edu.au/about-us.

Canadian Seabed Research Ltd., available at http://www.csr-marine.com/.

Caucus of Development NGO Networks, available at https://code- ngo.org/history/.

Clean Ocean Initiative, Inc., available at http://gis.jp.pr.gov/Externo_Econ/EvaluacionAmbiental/Archeological.pdf.

CRS Holland company, available at http://www.crsholland.com/.

DeepOcean, available at https://deepoceangroup.com/services/survey-seabed- mapping/cable-survey/. euNetworks, available at https://eunetworks.com/about/about-eunetworks/.

FARICE, available at http://www.farice.is/about-us/shareholders/.

FIDIC (Fédération Internationale Des Ingénieurs-Conseils /International Federation of Consulting Engineers), available at http://fidic.org/.

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Gardline, available at http://www.gardline.com/activities/submarine-cable- routes/.

Global Cloud Xchange, available at http://globalcloudxchange.com/products- and-solutions/.

Global Marine, available at http://www.globalmarine.co.uk/profile.html.

Groupe Loret, available at http://www.groupeloret.net/the-group/about/.

InterAction, available at https://www.interaction.org/what-we-do/.

International Cooperative Alliance, available at https://www.ica.coop/en/ourwork/global-advocacy.

International Medical Corps, available at https://internationalmedicalcorps.org/emergency-response/hurricane-dorian/.

Lu-cix, available at http://www.lu-cix.lu/who-are-we.html.

MarViva, available at http://www.marviva.net/en/history.

MMT Group AB, available at https://www.mmt.se/our-services/renewable- energy-marine-cables/cable-route-surveys/.

Norwegian Oil and Gas Association (Norskolje&gas), available at https://www.norskoljeoggass.no/en/about-us/.

Orange Marine, available at http://marine.orange.com/en/Bas-du-footer/Legal- matters2.

Orange SA, available at https://www.orange.com/en/content/download/22742/471975/versio.

Quintillion, available at http://qexpressnet.com/system/.

Rheintal, available at https://www.rheintal-ix.net/.

Rostelecom, available at https://www.rostelecom.ru/ir/stock_and_bonds/structure/.

SAIX, available at https://www.saix.at/.

Seaworks group, available at http://www.seaworks.co.nz/.

Softbank, available at https://www.softbank.jp/en/corp/group/sbm/news/press/2017/20171030_01/.

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Statoil, available at https://www.statoil.com/en/news/archive/2006/05/23/OrmenLangeControlCa bleIsLaidFromGiganticCarousel.html.

Telemar Scandinavia, available at http://www.telemar.se/company-profile.

TeleYemen, available at http://www.ty.com.ye/en/about-teleyemen/about-us- group-b/about-us.html.

Vodafone, available at http://www.vodafone.com/business/carrier- services/apollo-submarine-cable-2016-05-05.

VTLWaveNet, available at (https://cloudscene.com/service-provider/vtlwavenet.

Werthein Group, available at http://grupowerthein.com/en/group/history.

C) LOCAL CABLE PROTECTION COMMITTIES WEBSITES

Atlantic Cable Maintenance and Repair Agreement, available at http://www.acma2017.com/.

Danish Cable Protection Committee, available at http://www.dkcpc.dk/sider/vedtagt.asp.

European Subsea Cables Association, available at http://www.escaeu.org/.

Mediterranean Cable Maintenance Agreement, available at http://www.mecmamc.org/public/.

North American Submarine Cable Association, available at https://www.n-a-s-c- a.org/.

North America Zone Agreement, available at http://www.northamericazoneagreement.com/.

D) WEBSITES OF INTERNATIONAL ORGANIZATIONS AND FORUMS

Arctic Council, Task Force on Telecommunications Infrastructure in the Arctic, available at https://arctic-council.org/index.php/en/task-forces/342-tftia.

International Seabed Authority, available at https://www.isa.org.jm/.

International Hydrographic Organization, available at https://iho.int/.

Internet Governance Forum, available at https://www.intgovforum.org/cms/2015/IGF.24.06.2015.pdf.

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International Maritime Organization, available at http://www.imo.org/en/About/Pages/Default.aspx.

International Telecommunication Union, available at https://www.itu.int/en/Pages/default.aspx.

United Nations website, available at https://www.un.org/en/.

E) WEBSITES OF NON-GOVERNMENTAL ORGANIZATIONS

International Chamber of Commerce, available at https://iccwbo.org/about- us/who-we-are/dispute-resolution/.

Internet Corporation for Assigned Names and Numbers, available at https://www.icann.org/resources/pages/welcome-2012-02-25-en.

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