Southern Cross Cable Network Level 5, Resimac House 45 Johnston Street, Wellington 6011 PO Box 5340 Wellington 6140, New Zealand
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Southern Cross Cable Network Level 5, Resimac House 45 Johnston Street, Wellington 6011 PO Box 5340 Wellington 6140, New Zealand Facsimile +64 4 499 7232 Telephone +64 4 496 3250 20 December 2017 BY ELECTRONIC SUBMISSION International Seabed Authority 14-20 Port Royal Street Kingston, Jamaica [email protected] Re: Comments of Southern Cross Cables Limited on the International Seabed Authority’s Exploitation Regulations To the International Seabed Authority: Southern Cross Cables Limited (“Southern Cross”) respectfully comments on the draft Regulations on Exploitation of Mineral Resources in the Area of the International Seabed Authority (the “Authority”) and issued for public comment.1 Southern Cross is a submarine cable developer and operator in the Pacific Ocean region. It owns and operates the existing Southern Cross Cable Network (“SCCN”), which connects Australia, New Zealand, Fiji, and three landing points in the United States (Hawaii, California, and Oregon). it is also developing a new submarine cable system, Southern Cross NEXT, which will connect Australia and New Zealand directly with California and will likely traverse Contract Areas, Reserve Areas, and/or Areas of Particular Environmental Interest in the Clarion-Clipperton Zone. Southern Cross is pleased to see that the draft Exploitation Regulations seek to address the issue of submarine cable protection and coordination between submarine cables and Contractors. Installation of submarine cables is a key high-seas freedom established in article 87 of the United Nations Convention on the Law of the Sea (“UNCLOS”) and one expressly authorized in the Area. Southern Cross nevertheless believes it critical for the Authority to revise the Exploitation Regulations to include practical and forward-thinking provisions that ensure identification and 1 ISBA/23/LTC/CRP.3* (8 Aug. 2017) (“Exploitation Regulations”); Note by the Secretariat, Draft regulations on exploitation of mineral resources in the Area, ISBA/23/C/12 (10 Aug. 2017) (seeking comment on the Exploitation Regulations and posing general and specific questions for comment); Announcement from the Secretariat, Regulations on Exploitation of Mineral Resources in the Area (25 Aug. 2017) (establishing a 20 December 2017 comment deadline), https://www.isa.org.jm/news/draft-regulations-exploitation-mineral-resources- area. protection of existing and planned submarine cables and that avoid foreclosing vast portions of the Area to new submarine cable installations.2 Specifically, Southern Cross believes that the Authority should revise the Exploitation Regulations to: • Recognize expressly the high-seas freedoms to install and maintain submarine cables and pipelines; • Protect existing submarine cables and pipelines and repair thereof through inclusion of practical measures and avoid overly general or vague language that could be difficult for the LTC or applicants to apply; • Require the LTC to assess mining Contractor Plans of Work to account for submarine cable and pipeline protection and decline to recommend Council approval for any Plan of Work that fails to include effective submarine cable and pipeline protection measures; • Create a default separation distances from any existing submarine cable or pipeline that would apply absent agreement between the submarine cable owner and the mining Contractor for more proximate operations based on exchange of location information and equipment location technology; • Revise the performance guarantee requirement to incorporate an obligation by the mining contractor to protect proximate submarine cables and pipelines in or adjacent to Contract Areas or suffer financial consequences; • Ensure that LTC recommendations and Council actions on applications for exploitation activities do not foreclose protected routes for future submarine cables and pipelines through the Clarion-Clipperton Zone and other mining areas; and • Require mining Contractors to perform due diligence to identify in-service and planned submarine cables and address their protection in any Plan of Work. Southern Cross addresses these views in further detail below. 1. Background on submarine cables and Southern Cross Paramount importance of submarine cables. Submarine cable connectivity is critical for enabling economic activity and safeguarding national security. This is particularly true for island nations in Oceania and the Pacific Ocean. Surrounded by oceans and geographically distant from many of the world’s other population centers and economies, they must rely on submarine cables to connect to the rest of the world. Contrary to the popular misunderstanding, submarine cables—not satellites, which are more expensive, less secure, and offer less than real-time communications—carry approximately 99 percent of the world’s intercontinental Internet, data, and voice traffic. Submarine cables ensure real-time access to web pages and Facebook content, 2 Southern Cross has long been a member of the International Cable Protection Committee (“ICPC”) and endorses ICPC’s comments in this proceeding. See International Cable Protection Committee’s Comments On International Seabed Authority’s Draft Regulations On Exploitation Of Mineral Resources In The Area (filed 17 Nov. 2017). 2 processing of financial and credit-card transactions, seamless transmission of video conferences, and connectivity for government, military, and law enforcement personnel engaged in the most sensitive of activities. Southern Cross’s submarine cable networks. At present, a significant percentage of the Internet, data, and voice traffic of between Australia, New Zealand, Fiji, and the United States travels over Southern Cross’s SCCN, a highly-secure, high-speed network forming a figure eight, with a southern ring connecting Australia, New Zealand, Fiji, and Hawaii, and a northern ring connecting California, Oregon, and Hawaii. In 2017, Southern Cross announced that it would augment its original network by building Southern Cross NEXT, an industry-leading network with the fastest and most direct connectivity between Sydney, Auckland, and Los Angeles. SCCN and NEXT are owned by a group of investors in Australia, New Zealand, Singapore, and the United States. Southern Cross NEXT and the Clarion-Clipperton Zone. When SCCN was designed in the late 1990s, fiber-optic technology did not support the construction of fiber pairs within the cable connecting directly between Australia or New Zealand on one end and the United States on the other. Consequently, SCCN lands at Fiji and Hawaii. As of 2017, however, it is possible to construct an express fiber pairs between Australia/New Zealand and the United States (along with local fiber pairs connecting other jurisdictions in the Pacific Ocean). The most direct routing options for Southern Cross NEXT would all traverse the western portion of the Clarion- Clipperton Zone and one or more of the Contract Areas currently authorized for minerals exploration activities. Some route options also traverse Reserve Areas and Areas of Particular Environmental Interest (“APEIs”). Uncoordinated minerals exploitation poses a significant risk to submarine cables. Uncoordinated deep seabed mining activities—including both exploration and exploitation activities—pose a significant risk of damage to submarine cables and continuity of communications through: • Direct physical disturbance by equipment on the seafloor, sampling and coring activities, and exploitation of minerals through extraction of tons of seafloor sediment per hour; • Abrasion of the cable through contact with minerals and sediments in the course of mineral extraction; • Disturbance of out-of-service telecommunications and telegraph cables, over which active submarine telecommunications cables may be laid; and • Destabilization of the seabed, which could suspend the cable above the seafloor and increase the risks of damage from abrasion and contact with other mining equipment. Contact between submarine cables and mining equipment could also damage that mining equipment. Although treaties establish the liability rules for damage to submarine cables, it is in the interest of submarine cable operators and Contractors to establish coordination mechanism that avoid resort to such liability rules.3 Some mining contractors, however, have taken the 3 See, e.g., Convention for the Protection of Submarine Telegraph Cables, art. II (Paris, 14 Mar. 1884) (establishing an offence for willful or culpably negligent damage to submarine 3 position that they have a right and a duty to explore and exploit every meter of their contract areas, regardless of the presence of submarine cables. This is particularly concerning given the experience with the Honotua submarine cable system, where the Authority entered into a Contract for exploration directly over the submarine cable even though the cable had already been in operation for nearly eight years. Submarine cables are best protected through spatial separation from other marine activities. Submarine cables in deep sea areas have the diameter of a garden hose and are unarmored. Even if it was possible to armor them with steel wire rod at such depths, such layers would not fully protect submarine cables from contact with mining equipment and mineral harvesting activities currently contemplated by mining Contractors. As with risks from other marine activities, risks from deep seabed mining are best mitigated through spatial separation and coordination between the submarine cable operator and mining contractor.4 Most recently,