WRATHALL (DO NOT DELETE) 12/9/2010 3:20 PM The Vulnerability of Subsea Infrastructure to Underwater Attack: Legal Shortcomings and the Way Forward LAURENCE REZA WRATHALL* TABLE OF CONTENTS I. INTRODUCTION .................................................................................................. 224 II. THE VULNERABILITY: CRITICAL UNDERSEA INFRASTRUCTURE........................... 225 A. Oil and Natural Gas Pipelines................................................................. 225 B. Telecommunication Cables...................................................................... 227 C. Electricity Cables..................................................................................... 230 D. Collective Dim Mak Points ...................................................................... 230 III. THE THREAT: SUSCEPTIBILITY TO ATTACK FROM UNDER THE SEA..................... 234 A. Undersea Concealment............................................................................ 234 B. Unmanned Undersea Vehicles................................................................. 237 IV. THE LEGAL STATUS OF SUBMARINE PIPELINES AND CABLES .............................. 239 V. SHORTCOMINGS IN THE LEGAL PROTECTION OF SUBMARINE PIPELINES AND CABLES...................................................................................... 243 A. Lack of Domestic Legislation to Enforce Article 113 of the LOSC........................................................................... 244 B. Lack of Physical Manisfestation Meanws Less Protection ...................... 245 C. No Protection Under Article 101 (Piracy) of the LOSC .......................... 247 * J.D. and LL.M. in Taxation Candidate 2011, University of San Diego School of Law. I am sincerely grateful to co-workers at Systems Planning and Analysis, Inc. for their insight and professional mentorship, Professor Jorge Vargas for his support, the current editorial board of the San Diego International Law Journal for their corrections and suggestions, and friends and family—especially my wife Cheryl and daughter Caroline—for providing the relief and encouragement necessary to pursue my goals. 223 WRATHALL (DO NOT DELETE) 12/9/2010 3:20 PM VI. PROPOSALS AND RECOMMENDATIONS ................................................................ 248 A. Ratify the LOSC (United States specific) ................................................. 248 B. Adapt the 2005 SUA Protocol and Amendments ...................................... 249 C. Issue Declaratory Policies (United States specific) ................................. 250 D. Establish a Single Point of Contact to Monitor Threatenting Behavior ............................................................................. 252 E. Establish Safety Zones ............................................................................. 254 F. Clarification of Piracy Under the LOSC ................................................. 256 VII. CONCLUSION ..................................................................................................... 257 I. INTRODUCTION Today’s submarine pipelines and cables form modern sea lines of communication with important implications for global economic and maritime security.1 This vital infrastructure is designed to be resilient; however, stability rests on international cooperation and law. Continued advances in international communications and energy exploration hinge on international legal standards that protect private investors (i.e., companies who build, maintain and operate underwater networks) from untoward acts. A gap in legal protection for subsea pipelines and cables outside territorial waters could be exploited by undersea malfeasance. This is because trends in commercial undersea technologies are greatly expanding the size and sensitivity of the undersea “target set.” As the economic significance of this critical infrastructure grows, so does the motivation to hold it at risk. This symbiotic evolution of technological capabilities and undersea targets grows more acute as offshore infrastructure moves into deeper and deeper water. And while legal regimes in place today afford some protection to infrastructure above the waterline, they fall short of protecting from ambiguous attack below. This article explores the vulnerability of submarine pipelines and cables to underwater subterfuge beyond territorial waters, particularly with regards to the emerging threat posed by unmanned vehicles in executing such mal intent. Next, it describes the legal status of this critical infrastructure before identifying shortcomings in legal protection from underwater attack. Finally, potential solutions are offered for the way forward. 1. Scott Coffen-Smout & Glen J. Herbert, Submarine Cables: A Challenge for Ocean Management, 24 MARINE POL’Y 441, 442 (2000). 224 WRATHALL (DO NOT DELETE) 12/9/2010 3:20 PM [VOL. 12: 223, 2010] The Vulnerability of Subsea Infrastructure SAN DIEGO INT’L L.J. II. THE VULNERABILITY: CRITICAL UNDERSEA INFRASTRUCTURE A. Oil and Natural Gas Pipelines The world’s biggest marine industry is offshore oil and natural gas— with oil production alone amounting to more than $300 billion per year.2 Subsea3 oil and gas markets have grown by more than 90% in the last five years and are projected to remain “very strong for the foreseeable future.”4 The commercial undersea energy infrastructure (UEI) that brings these energy resources to market includes: offshore rigs and platforms; floating storage, processing, and handling facilities; wells; and offshore handling terminals. Subsea pipelines serve as the backbone for all this UEI.5 They connect increasingly complex floating production networks as well as 2. United Nations Convention on the Law of the Sea: Hearing on T. Doc. No. 103-39 Before the S. Comm. on Foreign Relations, 108th Cong. (2003) (statement of Paul L. Kelly, Senior Vice President of Rowan Companies, Inc., on behalf of the American Petroleum Institute, the International Association of Drilling Contractors, and the National Ocean Industries Association), available at http://lugar.senate.gov/issues/foreign/pdf/sea/ seareport.pdf at 117. 3. The term “subsea” is commonly used by the undersea oil and gas industry to identify assets and activities that utilize the sea floor. See, e.g., www.subsea.org. 4. Subsea Market to Remain Strong, SUBSEA WORLD, Feb. 12, 2008, http://www. subseaworld.com/news (search “Subsea Market”; then select “Subsea Market to Remain Strong” hyperlink) (last visited June 6, 2010). Traditional oil producing basins have matured, particularly on land, and exploration and production companies have been forced to look for new reserves in ever more challenging deepwater environments off the Coast of Africa and beyond the Continental Shelf in the Gulf of Mexico to maintain production and profits. Between 2006 and April 2010, the number of deepwater rigs grew 43% in the Gulf of Mexico region. See Ben Casselman et al., Blast Jolts Oil World, WALL ST. J., Apr. 22, 2010, at A1, A4. Oil produced from these rigs has played an important role—the Gulf of Mexico produces 30% of the U.S. oil output and is an important source of revenue for oil majors like BP. See id. at A4. Worldwide, oil production at deepwater projects—those in waters at least 1,000 feet deep—grew 67%, or about 2.3 million barrels a day, between 2005 and 2008, which accounts for about 8% of global production. See id. In fact, so imperative is offshore drilling as a viable alternative to reliance on foreign oil imports, that the U.S. Export-Import Bank made a preliminary commitment of $2 billion in August 2009 to Petrobas of Brazil (at best, a lukewarm ally in the Americas) to finance the development of its Tupi fields. Review & Outlook, Obama Underwrites Offshore Drilling, WALL ST. J., Aug. 18, 2009, at A16. 5. Worldwide total offshore pipeline construction was 12,685 miles in 2008. Bruce Beaubouef, Offshore Pipeline Construction Review, PIPELINE & GAS TECH., Apr. 1, 2008, http://www.pipelineandgastechnology.com/Construction/ForecastsReviews/item55721. php (last visited June 6, 2010). In the North Sea alone, there are now more than 100,000 kilometers of pipeline. See Daniel Esser, METS—The Tool for Pipeline Inspection, SEA TECH., Apr. 2002, at 51. One 23.1-kilometer North Sea pipeline, the Tampen Link gas 225 WRATHALL (DO NOT DELETE) 12/9/2010 3:20 PM vast subsea networks that directly feed ashore.6 And ostensibly, they protect critical hardware from storms and terrorists too.7 All these new kilometers of piping coincide with the growing sensitivity of energy prices to supply disruption.8 Factors mitigating the risk of untoward attack include robust pipeline construction with steel and concrete to withstand incidental impact from ship’s anchors, frequent burial six to seven feet below the silt, and the increasingly interconnected pipeline, exemplifies this increasingly indispensable role; it connects Norway’s Statfjord oil and gas field to the United Kingdom (U.K.), which increases Norway’s ability to export gas to the U.K. by 25 million cubic meters per day. See Nina Berglund, New Pipeline Opens, AFTENPOSTEN, Oct. 15, 2007, available at http://www.aftenposten.no/english/ business/article2048659.ece. The breadth and depth of UEI development in the Gulf of Mexico, where the lion’s share of U.S. domestic crude oil supply is extracted, is also illustrative of worldwide trends. For example, the Gulfstream Natural Gas System pipeline runs 691 miles under the Gulf from Alabama to a growing consumer base in central Florida.