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The High Seas Freedom to Lay Submarine Cables and the Protection of the Marine Environment: Challenges in High Seas Governance

  • Tara Davenport (a1)
Extract

The freedom to lay submarine cables and pipelines, one of the most venerated high seas freedoms under the 1982 United Nations Convention on the Law of the Sea (UNCLOS), faces an uncertain future under the new international legally binding instrument (ILBI) being negotiated in the United Nations. UN General Assembly Resolution 72/249, authorizing the intergovernmental conference for the new ILBI, does not expressly mention submarine cables or pipelines but states that “the work and results of the conference should be fully consistent with the provisions of” UNCLOS. The issues in a new ILBI that are likely to have an impact on the freedom to lay submarine cables and pipelines in areas beyond national jurisdiction are (1) area-based management tools, and (2) environmental impact assessments (EIAs), which are mechanisms used to protect and preserve the marine environment and biodiversity. The challenge for high seas governance (and indeed, the perennial challenge for the law of the sea) is how to balance these two ostensibly competing, but equally valuable, interests: the protection of the marine environment and biodiversity and the high seas freedom to lay submarine cables in areas beyond national jurisdiction.

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This is an Open Access article, distributed under the terms of the Creative Commons Attribution licence (http://creativecommons.org/licenses/by/4.0/), which permits unrestricted re-use, distribution, and reproduction in any medium, provided the original work is properly cited.
References
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1 UN Convention on the Law of the Sea, Dec. 10, 1982, 1883 UNTS 396 [hereinafter UNCLOS].

2 G.A. Res. 72/249 para. 6 (Dec. 24, 2017).

3 The final report of the Preparatory Committee dated July 31, 2017, noted that EIAs and area-based management tools were two issues on which there was a great deal of convergence among most delegations, but the modalities would be subject to further negotiations. Report of the Preparatory Committee established by the General Assembly Resolution, UN Doc. A/AC.287/2017/PC.4/2 (July 31, 2017) [hereinafter Report of the Preparatory Committee].

4 G.A. Res. 65/37A para. 112 (Dec. 7, 2010).

6 Id. at 41. There are power cables laid or planned to be laid in regional seas where boundaries have not been agreed upon; hence, these power cables could conceivably fall within areas beyond national jurisdiction.

8 Int'l Law Comm'n, Report on Its Second Session, UN Doc. A/CN.4/34, at 384 (1950).

9 Summary Records of the 65th Meeting, [1950] 1 Y.B. Int'l L. Comm'n 199, U.N. Doc. A/CN.4/Ser.A/1950.

10 Tara Davenport, The Installation of Submarine Power Cables under UNCLOS: Legal and Policy Issues, 56 German Y.B. Int'l L. 107, 116–18 (2014).

11 UNCLOS, supra note 1, arts. 87 & 112. “The ‘Area’ means the seabed and ocean floor and subsoil thereof, beyond the limits of national jurisdiction.” Id. art. 1(1)(1).

12 3 United Nations Convention on the Law of the Sea 1982: A Commentary 264 (Myron Nordquist et al. eds., 1995).

13 Burnett & Carter, supra note 5, 29–41.

16 Burnett & Carter, supra note 5, at 41–43.

17 Int'l Inst. for Sustainable Dev., Summary of the First Session of the Preparatory Committee on Marine Biodiversity of Areas Beyond National Jurisdiction 12, 25:106 Earth Negotiations Bulletin (Apr. 11, 2016) [hereinafter Int'l Inst. for Sustainable Dev., Summary of the First Session]; Int'l Inst. for Sustainable Dev., PrepCom 2 Highlights: August 30, 2016, at 2, 25:111 Earth Negotiations Bulletin (Aug. 31, 2016) [hereinafter Int'l Inst. for Sustainable Dev., PrepCom Highlights].

18 Int'l Inst. for Sustainable Dev., PrepCom Highlights, supra note 17, at 2.

19 Int'l Inst. for Sustainable Dev., Summary of the First Session, supra note 17, at 12.

20 Burnett & Carter, supra note 5, at 60.

21 Submission by the ICPC to the PrepCom: Submarine Cables and BBNJ (Aug. 1, 2016); see also Burnett & Carter, supra note 5, 63.

22 The ICPC has taken steps to engage with the PrepCom and the negotiations of the intergovernmental conference by holding side events and by applying for observer status before the UN, which would enable it to participate in UN meetings.

24 McDougal & Burke, supra note 7, at 11.

25 Chagos Marine Protected Area Arbitration (Mauritius v. U.K.), P.C.A. Case No 2011-03, Award, para. 540 (Mar. 18, 2015).

26 Eyal Benvenisti, Legal Regulation of the Decision-Making Process Within Global Governance Bodies, 33 (Global Trust Working Paper 5, 2014).

27 Most delegates in the PrepCom accepted that an activity must meet at least some threshold of likely harm before an EIA would be required. See Report of the Preparatory Committee, supra note 3.

28 UNCLOS, supra note 1, art. 79(2) & (3).

29 Tara Davenport & Zhen Sun, Submarine Cables in the Sargasso Sea: Lessons for the PrepCom, in Legal Status of Submarine Cables, Pipelines and ABNJ (Hakan Karan et al. eds., 2017).

30 Burnett & Carter, supra note 5, at 52.

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