10.1 Introduction
Submarine cables as such are not a new technology. On the contrary, activities related thereto can be considered to be one of the traditional uses of the seas and ocean. Submarine cable activities have occurred since the nineteenth century, when telegraphic cables took center-stage (Ash Reference Ash, Burnett, Beckman and Davenport2014, 19–39). With time, the usage of submarine cables has significantly expanded. This is in terms of both scale and their emergence in a broader range of contexts, including energy, scientific, and military. Combined with this, the importance of submarine cables has increased to a point where they are now widely considered as critical infrastructure (Lott Reference Lott and Lott2024, 125–128). Among the range of contexts where submarine cables have emerged, fiber-optic cables used for (international) communications have notably risen to prominence, mainly in tandem with the creation of the internet in the 1980s (Davenport Reference Davenport2015a, 61–62). The proper functioning of the global telecommunications network, including the internet and financial and security systems, is inexorably interwoven with submarine fiber-optic cables (Van Logchem Reference van Logchem2021a).
A relatively recent technological development, constituting a new use of cables, is to outfit fiber-optic communication cables with oceanographic sensors to collect data on the oceans, environment, and climate change, thereby turning them into Sensor Monitoring and Reliable Telecommunications (SMART) cables (Lentz and Phibbs Reference Lentz and Phibbs2012; You Reference You2010a). This is one of the solutions scientists have devised to improve the state of knowledge relating to the seas and oceans (Carter and Soons Reference Carter, Soons, Burnett, Beckman and Davenport2014, 326–327; Davenport Reference Davenport, Schreiber, Kraska and Kwon2015b, 210). Currently, significant gaps remain in our knowledge of the oceans, especially of the deep ocean (Doussis Reference Doussis and Andreone2017, 87–88). One reason for these gaps is the limitations inherent in other means employed to collect oceanographic data, such as buoys and satellites that cannot collect data below specific depths (Butler Reference Butler2012, 5; You Reference You2010b).
More information on the marine environment can be obtained through the oceanographic sensors attached to submarine telecommunication cables, which are modified versions of those sensors used in cabled ocean observatories. In this light, the development and deployment of SMART cables should be applauded. The paucity of knowledge about the marine environment affects the accuracy of disaster warnings. It also limits our understanding of the impact of climate change on the oceans, hampering our ability to counter climate change successfully. Societal and scientific benefits are thus associated with SMART cables. Consequently, utilizing the vast infrastructure of submarine communications cables and harnessing them to gather oceanographic data multiplies their functionality. However, several legal issues spring from this multifunctionality. Underlying these issues is that SMART cables combine the transmission of voice, video, and data traffic with gathering information on the marine environment. While dual-use cables add an additional tool for oceanographic data collection, they also introduce different legal regimes that do not fully align. More specifically, due to fiber-optic cables being outfitted with this additional functionality, several pertinent issues are presented. First, since SMART cables transmit international communications and collect and transmit oceanographic data, should their usage be considered an activity falling under the legal regimes relating to both cables and marine scientific research (MSR), and thus require coastal State consent, depending on the maritime zone involved? Second, would the collection of data by a submarine telecommunication cable be part of the rights and freedoms relating to transit cables of other States beyond the territorial sea of coastal States? This chapter demonstrates that the answers to these issues are variable in that they depend on the location of the cable and how the cable is being used.
Section 10.1 begins this chapter with setting the scene by sketching the roles of submarine cables and SMART cables. It addresses the relationship of SMART cables to fiber-optic telecommunication cables, where SMART cables can be situated among the different methods for collecting oceanographic data, such as buoys and cabled ocean observatories (these are subsea infrastructures – designed to collect data on the marine environment – that employ submarine cables for the transfer of data and power), and canvasses the range of challenges that may arise around SMART cables. The international legal framework applicable to SMART cables is considered in Section 10.2, which emphasizes the crucial distinction between telecommunication cables that only transit a coastal State’s maritime zone and those that make landfall in the State’s territory. In broad strokes, where for the laying of landing cables the coastal State has extensive authority, this is significantly reduced for transit cables in a coastal State’s exclusive economic zone (EEZ) and on the continental shelf. Then, the focus shifts to the classification of SMART cables in light of the role such cables have in marine data collection. Particular attention is paid to their double function, whereby different legal regimes may be activated: that is, the one applicable to submarine cables and the regime for marine data collection. If it concerns MSR, Part XIII of the 1982 United Nations Convention on the Law of the Sea (UNCLOS)Footnote 1 will be relevant (see Section 10.2.2). Although security concerns apply broadly to cables, including against the backdrop of increasing geopolitical tensions, in the case of SMART cables these concerns may be magnified. Submarine cable security has also taken on urgency after a spate of instances where submarine cables were seemingly intentionally targeted, such as in the Balticconnector incident of October 2023 (Henley and Ambrose Reference Henley and Ambrose2023). Security-related concerns over telecommunication cables and SMART cables take center-stage in Section 10.3. The chapter concludes in Section 10.4 with thoughts on how to deal with emerging legal challenges and the future of SMART cables.
10.1.1 Background on Submarine Cables
Submarine cables are either placed on or buried in the seabed. They are roughly a few centimeters in width. Their width and footprint will increase if cables are installed on the seabed with an extra layer of protection composed of a gel-like substance, which is encased in a copper or aluminum tube, followed by layers of steel wires for strength. The entire cable is then covered with a polyethylene sheath for insulation and waterproofing. These features may double the size of the cable (Carter et al. Reference Carter, Burnett, Drew, Marle, Hagadorn, Bartlett-McNeil and Irvine2009, 8). For fiber-optic telecommunication cables to be turned into SMART cables, the cable repeaters will have to be modified in a way that enables them to collect data. On a side note, cable repeaters are an integral part of a cable and a key ingredient in international fiber-optic cable systems, as they provide the necessary boost to signals transmitted through cables, which will lose their strength and quality over distance. The repeaters in fiber-optic cables have sufficient “space to integrate the temperature, salinity and pressure sensors” (You Reference You2010b, 4), meaning that neither the appearance nor the size of SMART cables is different from that of their non-SMART counterparts. Particularly when located in relative proximity to the coast, submarine cables are buried in the subsoil (Ash Reference Ash, Burnett, Beckman and Davenport2014, 35), using remotely operated vehicles. This makes them less vulnerable to damage from competing activities, such as fishing, that tend to intensify as one approaches the coast (Section 10.3). Although cables are considered largely environmentally benign, some concerns have been raised over the resulting disturbance to the marine environment if they are buried in the seabed (Carter et al. Reference Carter, Burnett, Drew, Marle, Hagadorn, Bartlett-McNeil and Irvine2009, 33).
Today, the use of submarine cables is pervasive for international communications – the high-speed transmission of voice, video, and data traffic (Carter et al. Reference Carter, Burnett, Drew, Marle, Hagadorn, Bartlett-McNeil and Irvine2009, 8). The reliance on submarine cables in international communications continues to grow (The Economist 2016, 16). The lynchpin role of submarine cables in communications is illustrated by the fact that approximately 400 cables (making up over 500 individual cable systems) snaking around most of the globe are responsible for about 97 percent of international communications (UNGA 2011, 2023, 125; Burnett et al. Reference Burnett, Davenport, Beckman, Burnett, Beckman and Davenport2014b, 4).Footnote 2 This stands in stark contrast to a popular misperception that such communications are conducted primarily using satellites in outer space (Burnett et al. Reference Burnett, Davenport, Beckman, Burnett, Beckman and Davenport2014b, 3).
Submarine telecommunication cables have a long pedigree, having first emerged in the nineteenth century (Ash Reference Ash, Burnett, Beckman and Davenport2014, 20). Then, in line with the state of the technology, it was telegraphic cables that reflected the state of the art (Ash Reference Ash, Burnett, Beckman and Davenport2014, 20–28). After the submarine telegraphic cable fell into disuse in the 1930s, a new era of telephone cables dawned, with the laying of two such cables between Scotland and Newfoundland (Ash Reference Ash, Burnett, Beckman and Davenport2014, 28–33). The next phase for submarine cables followed after satellites had risen to prominence in the 1970s and 1980s as the main means for providing international communications (Carter et al. Reference Carter, Burnett, Drew, Marle, Hagadorn, Bartlett-McNeil and Irvine2009, 15). The discovery of fiber-optic cables in 1966 (Ash Reference Ash, Burnett, Beckman and Davenport2014, 33), which subsequently were introduced into a marine environment in 1986 (Ash Reference Ash, Burnett, Beckman and Davenport2014, 34), ultimately eliminated satellites as the main means of international communication. Their downfall was buoyed by the creation of the internet in 1982 and the subsequent combining of that technology with the use of submarine cables, which has changed the face of telecommunications.
Outside of the communications context, submarine cables serve different purposes as well, including the transport of electrical power from one location to another and the collection and transmission of military and oceanographic data (see Section 10.2.2). Submarine cables are in use in the context of the collection of oceanographic data, albeit to that exclusive aim, which sets them apart from most SMART cables (see Section 10.1.2). As a further refinement, MSR cables can be employed for a single purpose (that is, collection of oceanographic data or transmission of such data), or they can combine the two, both collecting and transmitting scientific data. Submarine telecommunication cables have had the role of transporting oceanographic data that was collected through alternative means for data collection as part of an MSR project. Data obtained through cabled ocean observatories are especially relevant in this context (Carter and Soons Reference Carter, Soons, Burnett, Beckman and Davenport2014, 328–332). Cabled observatories come in a variety of shapes and forms and offer different levels of complexity, ranging from oceanographic mooring to complex observatory systems that rely extensively on cables through which power and communications are simultaneously provided. These systems enable the collected data to be transferred instantly to an onshore facility (Carter and Soons Reference Carter, Soons, Burnett, Beckman and Davenport2014, 328–332). In this vein, the NEPTUNE system, which is a regional cabled observatory system in the waters off the coast of Canada, is underpinned by close to 1,000 km of cable for the combined purpose of transmitting data and providing power (Ocean Networks Canada n.d.). Although such cabled systems employ communications technology in a data collection context, they fall short of the integration that is perceived with SMART cables, which have a data collection functionality. Another use of submarine cables is that they have been outfitted with the capacity to conduct MSR actively in the past; this is thus beyond functioning as a means for transporting data. Their use in data collection dates to the second half of the twentieth century, when cables were used to measure ocean currents (Carter and Soons Reference Carter, Soons, Burnett, Beckman and Davenport2014, 325). As time progressed, submarine cables came to underpin other scientific uses as well, including measuring ocean temperatures and gathering information pertinent to natural hazard detection (Carter and Soons Reference Carter, Soons, Burnett, Beckman and Davenport2014, 325). Nonetheless, significant gaps remain in our knowledge of the seas and oceans, which has spurred researchers to find new solutions to close those gaps (Carter and Soons Reference Carter, Soons, Burnett, Beckman and Davenport2014, 325). Against this background, SMART cables have emerged as the new frontier in oceanographic data collection. In some ways, SMART cables are similar to those MSR cables, combining the functions of oceanographic data collection and the transmission of such data, but one important difference lies in that this is a secondary function to providing international communications.
10.1.2 SMART Cables
In general, equipping submarine cables with sensors is not a new phenomenon. In such a vein, power cables have been outfitted with sensors since the 1980s to measure ocean temperature (Agarwala Reference Agarwala2019, 54). The idea of equipping telecommunication cables with oceanographic sensors took root even earlier. More specifically, Japanese scientists modified analogue cables with sensing technology for earthquake and tsunami detection and warning in 1979 (Howe et al. Reference Howe, Arbic, Aucan, Barnes, Bayliff, Becker, Butler, Doyle, Elipot, Johnson, Landerer, Lentz, Luther, Müller, Mariano, Panayotou, Rowe, Ota, Song, Thomas, 303Thomas, Thompson, Tilmann, Weber and Weinstein2019, 16). In the wake of the Tohoku earthquake and tsunami in 2011, this range of seismic observatories employing sensing technology (that is, seismic and pressure sensors) in communication cables has further expanded off the coast of Japan. While these “SMART cables” involved repurposed analogue communication cables, there are different variants of such cables, however, which leads to the question of their definition. Different terminology is used in the literature to refer to a fiber-optic submarine cable that collects and transmits oceanographic data. This includes “green cable” (Agarwala Reference Agarwala2019, 50), “telecom-marine data cable” (Bressie Reference Bressie2012, 1), and “SMART cable” (1–2) – the last of which is discussed in this chapter.
Irrespective of nomenclature, reference is made to the same phenomenon: that is, the outfitting of fiber-optic telecommunication cables with sensors, which enables the cable to measure “ocean temperature and salinity, pressure and acceleration” (Carter and Soons Reference Carter, Soons, Burnett, Beckman and Davenport2014, 327). Fiber-optic telecommunication cables can be modified in three ways to collect data, whereby they take on the features of a SMART cable. First, akin to the example of the seismic observatories created off the coast of Japan, redundant cables can have a new life by repurposing these exclusively for data collection and transmission (a). Second, telecommunication cables already in place and involved in the transmission of international communications can be outfitted with oceanographic sensors to collect data on the marine environment and to then transmit it through the same communications cable (b). Third, new fiber-optic communication cables that have yet to be installed can be purposely designed with these oceanographic sensors included in their repeaters (c) (Davenport Reference Davenport, Schreiber, Kraska and Kwon2015b, 244). It is mainly with variants (b) and (c) that this chapter is concerned, as through their modification they become genuine dual-use cables. Due to their dual function, they also raise the most legal challenges (see Section 10.2).
Two of the main benefits of SMART cables are that they can collect information at great depths and at a relatively low cost (Howe et al. Reference Howe, Arbic, Aucan, Barnes, Bayliff, Becker, Butler, Doyle, Elipot, Johnson, Landerer, Lentz, Luther, Müller, Mariano, Panayotou, Rowe, Ota, Song, Thomas, 303Thomas, Thompson, Tilmann, Weber and Weinstein2019, 1–2). Through their use, an improved understanding of the (marine) environment can be obtained. More oceanographic data translates into gaining a better understanding of the climate and oceans (Agarwala Reference Agarwala2019, 51, 54–55). This benefits science and, in turn, helps in the fight against climate change and in the accuracy of disaster warnings. Beyond that, SMART cables are a relatively easy and inexpensive way to achieve this. For example, the oceanographic sensors included in the repeaters of fiber-optic cables are modifications of off-the-shelf technology used in cabled ocean observatories (Howe et al. Reference Howe, Arbic, Aucan, Barnes, Bayliff, Becker, Butler, Doyle, Elipot, Johnson, Landerer, Lentz, Luther, Müller, Mariano, Panayotou, Rowe, Ota, Song, Thomas, 303Thomas, Thompson, Tilmann, Weber and Weinstein2019, 2). Beyond that, if active telecommunication cables are equipped with sensors, this avoids having to build dedicated ocean observatories that similarly rely on cables for data transmission and power supply. Technological challenges arise in outfitting fiber-optic cables with oceanographic sensors, however. For example, in installing this technology in long(er) cable routes, including those exceeding 2,500 km, and ensuring that the lifespan of a SMART cable extends about twenty-five years, which would be the same as for its non-SMART counterparts (Howe et al. Reference Howe, Arbic, Aucan, Barnes, Bayliff, Becker, Butler, Doyle, Elipot, Johnson, Landerer, Lentz, Luther, Müller, Mariano, Panayotou, Rowe, Ota, Song, Thomas, 303Thomas, Thompson, Tilmann, Weber and Weinstein2019, 14–17). SMART cables enable significantly more data to be collected, but this performance comes with an important caveat. The resulting picture will continue to exhibit informational gaps, as some parts of the seas are unserved by cables or are covered only to a limited extent. This somewhat uneven distribution of telecommunication cables around the globe would tilt the scales on oceanographic collection in favor of the northern hemisphere, which has a denser cable network (Carter and Soons Reference Carter, Soons, Burnett, Beckman and Davenport2014, 328). The advent of SMART cables would thus not render obsolete other means of obtaining oceanographic data. To provide the fullest picture, the information obtained via SMART cables requires integration with “information gathered from other observation sites” (Carter and Soons Reference Carter, Soons, Burnett, Beckman and Davenport2014, 328), including by satellites, ships, buoys, and observatories (Howe et al. Reference Howe, Arbic, Aucan, Barnes, Bayliff, Becker, Butler, Doyle, Elipot, Johnson, Landerer, Lentz, Luther, Müller, Mariano, Panayotou, Rowe, Ota, Song, Thomas, 303Thomas, Thompson, Tilmann, Weber and Weinstein2019, 3).
10.1.3 Views of the Cable Industry on SMART Cables
Despite the scientific and societal benefits associated with SMART cables, some hurdles do exist, which may limit the further rollout of this innovation. Before delving into these hurdles, it requires mention that most activities related to submarine telecommunication cables are undertaken by private actors. By that same token, State involvement is usually limited. More specifically, the industry is composed of three completely or partly privatized actors: the owners of submarine cables, which are generally individual or a consortium of telecommunication carriers (for example, AT&T, Google, and Singapore Telecommunications Limited); those that install cables on or in the seabed (for example, Tyco Telecommunications); and cable maritime route surveyors (Davenport Reference Davenport2012, 202; Van Logchem Reference Van Logchem2014). It is rare for a submarine cable system to be owned by a single company, as often consortia ranging from six to twenty companies will own parts of a cable system. Furthermore, the consortia divide the bandwidth by divisible rights, apportioning the cable based on the investment in the project. Their bottom line is financial, and in line with this, their modus operandi is geared toward keeping the cable system operational and minimizing coastal State interference (Van Logchem Reference Van Logchem2014, 113–114). For example, this aspect is already visible in the inception of a cable system. In the determination of a cable route, the cable industry will exert significant effort to identify and, if feasible, avoid those sea areas that carry the risk of damaging cables (Evans and Page Reference Evans, Page, Burnett, Beckman and Davenport2014, 97–98).
Against this background, the views of the industry on SMART cables take on particular urgency. On the positive side, adding sensors to a cable improves the ability to monitor its integrity remotely as well; a cable without sensors does not have the capacity to detect external hazards. A further benefit for the cable industry is that the data collected by the sensors may illuminate natural hazards, which could help improve cable resilience. Industry recognizes these benefits, as some of its members, including TE SubCom, have expressed interest in SMART cable systems (Subsea World News 2017). At the same time, the industry has some concerns over SMART cables, which may well outweigh their benefits (Bressie Reference Bressie2012, 21). The industry is particularly worried about negative impacts on the delivery of international communications bandwidth if cables used to this specific aim are outfitted with oceanographic sensors (Bressie Reference Bressie2012, 21). Once a telecommunication cable is modified, whereby it is changed into a dual-use cable used for data collection as well, coastal States may use this as a jurisdictional hook to expand their reach over cables (Bressie Reference Bressie2012, 24–25). One example of a State that reportedly opposes giving active telecommunication cables a role in scientific data collection is Japan (Palmer-Felgate Reference Palmer-Felgate2016). Beyond that, coastal States exercising excessive jurisdiction over telecommunication cables are already a recurring theme, without sensors having been added to these cables (Bressie Reference Bressie2012, 3, 24). This is visible, for example, in the contexts of the delineation of transit cable routes and with regard to the laying or repairing of transit cables in the EEZ or on the continental shelf over which some coastal States assume jurisdiction, despite this lacking a basis in UNCLOS (Van Logchem Reference Van Logchem2014, 110).
A further concern of the industry centers around security, which may be enhanced when cables are equipped with the capacity to monitor their surroundings, including revealing nearby ship information (see Section 10.3). This aspect may provide additional encouragement to coastal States to assert jurisdiction over SMART cables. Other questions will have to be answered as well before the telecommunication industry widely embraces SMART cables. For example, who will pay for outfitting fiber-optic cables with oceanographic sensors (Agarwala Reference Agarwala2019, 50)? Who will be liable for the costs of repair and any additional damage if the sensors interfere with the proper functioning of the cable? There is also the question of ownership of the collected data (Howe et al. Reference Howe, Arbic, Aucan, Barnes, Bayliff, Becker, Butler, Doyle, Elipot, Johnson, Landerer, Lentz, Luther, Müller, Mariano, Panayotou, Rowe, Ota, Song, Thomas, 303Thomas, Thompson, Tilmann, Weber and Weinstein2019, 17–18). As data is collected through cables that are privately owned, such data would be proprietary, placing ownership with the cable owners. But there is another important driver behind how warmly SMART cables will be embraced by industry and that is whether “a business case can be made” for cable owners (Bressie Reference Bressie2012, 3, 25).
Despite the potential challenges associated with SMART cables, they are already being piloted in practice. Examples in this respect are a cable system (SMART Atlantic CAM) connecting the Portuguese mainland to the Azores and Madeira respectively, and the SMART cable lying between the neighboring small island States of Vanuatu and New Caledonia (SMART Cables n.d.). A common feature of these projects is that they sidestep many of the more difficult questions – for example, by avoiding coastal States that have not agreed to the SMART cable route through their maritime zones or because the network is underpinned by an agreement between the States to have the SMART cable system run between their coasts.
10.2 SMART Cables: A Classification Conundrum?
From a legal perspective, one of the main conundrums is the dual-use nature of SMART cables. Tied to this, the issue arises whether they are subject to one or two legal regimes. Should these dual uses of oceanographic data collection and transmission, and of providing international communication, be treated on an equal footing, rendering the cable subject to both the cable regime and the MSR regime? Or, rather, considering that data collection is an added functionality of a submarine cable that is primarily used for telecommunications, would it be merely subject to the set of rules pertaining to submarine cables? At first glance, the latter line of argument may be difficult to uphold, considering that a single-purpose cable used for international communications is modified to enable it to exercise the secondary function of data collection that may be tantamount to MSR (a), or when a new fiber-optic communication cable is installed with oceanographic sensors (b) (see Section 10.1.2). Connected to this, the aspect of data collection is unrelated to the ability of the cable to transmit international communications, which renders it seemingly difficult for SMART cables not to be perceived as subject to a dual regime. Before addressing where SMART cables fit under the international legal framework (Section 10.2.3), it is necessary to lay out both regimes.
10.2.1 The International Legal Framework Relating to Submarine Cables
An international element is required for the international legal framework relating to submarine cables to enter the picture. Usually this occurs because the cable passes through different maritime areas or zones of one or more coastal States. Submarine cables require a starting point and an end point from landing stations ashore. International cable systems require landing stations in the land territories of different coastal States. Before these stations are reached, submarine cables may transit maritime areas that are part of a coastal State’s territory and where it has sovereignty (archipelagic waters, internal waters, or the territorial sea); those areas that are subject to functional coastal State jurisdiction (the contiguous zone, the EEZ, and the continental shelf); areas beyond coastal State jurisdiction (the high seas and the international deep-seabed area); or a combination thereof. Depending on the submarine cable segment involved, the applicable international legal rules and the extent of coastal State authority vary.
Submarine cables are regulated by four international legal instruments: the 1958 Geneva Conventions on the Continental ShelfFootnote 3 and the High Seas,Footnote 4 UNCLOS, and the Convention for the Protection of Submarine Telegraph Cables (1884 Cable Convention).Footnote 5 Only the last of these is specifically designed for dealing with telegraphic cables, regulating them in the narrow context of their protection. Particularly relevant for States, however, is UNCLOS. That Convention has attracted close to universal participation, and its provisions on submarine cables have virtually all obtained customary status (Carter and Soons Reference Carter, Soons, Burnett, Beckman and Davenport2014, 332). This is because those provisions on cables in the 1958 Conventions on the High Seas and the Continental Shelf, which UNCLOS replicates, were already considered customary (Davenport Reference Davenport2012, 203). As background, when UNCLOS was negotiated at the Third Law of the Sea Conference, the use of submarine cables was on the decline owing to the increased use of satellites, which were cheaper and more reliable at that time (Carter et al. Reference Carter, Burnett, Drew, Marle, Hagadorn, Bartlett-McNeil and Irvine2009, 15). This changed after the final text of UNCLOS had been agreed upon in 1982. The real watershed moment came the following year, in 1983, with the creation of the internet (Ash Reference Ash, Burnett, Beckman and Davenport2014, 34). Fiber-optic cables and the internet became inexorably intertwined in that, through these cables, virtually all the video, voice, and data traffic for the internet were transmitted (see Section 10.1.1). A general implicit reference to the significance of submarine communication cables in UNCLOS can be distilled from one of the aims in the preamble: to strengthen “a legal order for the seas and oceans which will facilitate international communication.”
A key aspect of the legal rules for submarine cables is whether they land on an island or mainland territory of a coastal State. If such landfall is made by a cable in its territory, a coastal State has significantly greater authority over it than if it merely passes offshore. The extent of this authority would then not be confined to the cable segments physically located in its territory, including the territorial sea. This is an automatic corollary to the requirement that cables making a landing in the territory of the coastal State have its consent. To exercise that authority, coastal States may impose certain conditions on the cable and its landing, such as compliance with regulations on the route the cable takes, as well as associated environmental and labor laws. The effect of this is that the set conditions can also relate to those segments of cable systems that are in the EEZ, on the continental shelf, and possibly even beyond (Carter and Soons Reference Carter, Soons, Burnett, Beckman and Davenport2014, 335).
In this light, the provisions of UNCLOS are largely tailored to submarine cables that only pass through a coastal State’s maritime zones without making a landfall. The precise rights and obligations of States concerning transit cables vary with the maritime zone involved. For maritime areas that are part of the coastal State’s territory (that is, internal waters, archipelagic waters, and the territorial sea), the legal framework for submarine cables is straightforward: the coastal State has full regulatory authority over the laying, maintaining, and repairing of cables within these areas (Articles 2 and 49). This latter provision relating to archipelagic waters must be read in conjunction with Article 51, which provides that archipelagic States must respect in situ transit cables by allowing their repair, maintenance, and possible replacement upon receipt of notice. Coastal State authority applies in maritime zones under the coastal State’s sovereignty, regardless of how the cable is classified or its function. A clear picture also emerges for cables transiting areas beyond coastal State jurisdiction, such as the high seas and the international deep seabed. Article 87(1)(c) of UNCLOS grants all States the freedom to lay transit submarine cables in these areas, subject to Part VI of the Convention. That right is further strengthened in Article 112(1). While not explicitly mentioned in Article 87 or 112, repairing and maintaining transit submarine cables, including cable route surveying, are covered by the freedom of the high seas (Van Logchem Reference Van Logchem2014, 111–112). This view is based on the assumption that repair and maintenance are essential to the lawful use of the sea and inseparable from the freedom to lay transit submarine cables (Van Logchem Reference Van Logchem2014, 109, 112). A related question is whether attaching oceanographic sensors to submarine cables, which adds the functionality of data collection, could be considered part of the freedom to lay such cables (Strati Reference Strati2011). This question is further addressed in Section 10.2.3.
Regarding areas within coastal State jurisdiction (that is, the EEZ and the continental shelf), the international legal regime on submarine cables is more complex. Article 58(1) of UNCLOS grants the right to lay cables in these zones, but with certain limitations. The right to lay cables only applies to those transiting the EEZ or the continental shelf without making landfall. Although Article 79(1) of UNCLOS is silent on the right to repair and maintain transit cables, these have to be viewed as activities inherent in the right to lay such cables. Beyond that, in Article 79(2) and (5) there is explicit reference, respectively, to the maintenance and repair of in situ cables. Rights related to transit submarine cables must be exercised with due regard for in situ cables and pipelines and in a way that does not hamper their repair (UNCLOS, Article 79(5); Van Logchem Reference Van Logchem2014, 110, 118). A similar obligation of due regard in exercising cable rights in the EEZ and on the continental shelf flows from Article 58(3). This provision imposes on all States – which also extends to private actors engaged in cable activities (Van Logchem Reference Van Logchem2014, 100, 118) – an obligation to comply with laws and regulations of coastal States that are adopted in accordance with Part V of UNCLOS. Particularly relevant for cables are Article 79(2) and (4) (paragraph 3 is concerned with the delineation of pipelines), which allows for limitations to be imposed by coastal States on the right to lay transit cables of other States.
According to Article 79(2) of UNCLOS, the coastal State retains the option to take reasonable measures necessary to protect the exploratory and exploitation rights it has with regard to the continental shelf and any resources contained therein. Measures that would likely fall under this heading are those geared toward prohibiting cable laying in environmentally sensitive areas or areas reserved for hydrocarbon exploitation (Van Logchem Reference Van Logchem2014, 109). It follows from the same paragraph that coastal States cannot adopt regulations for pollution control in connection with cables located on their continental shelf; the background to reserving this right to pipelines lies in the fact that cables have virtually no detrimental impact on the marine environment (Carter et al. Reference Carter, Burnett, Beckman and Davenport2014). Article 79(4) states that Part VI leaves untouched that the coastal State can set conditions for cables that enter its territory. However, there are differing opinions on how much room Article 79(2) and (4) leaves for the coastal State to take measures that impose limitations on the right to lay transit submarine cables. The main bone of contention is whether the coastal State’s authority goes beyond setting conditions related to natural resources over which the State has sovereign rights (Beckman Reference Beckman2010, 6, 7; Davenport Reference Davenport, Schreiber, Kraska and Kwon2015b, 220–222). A general limitation is that measures taken may not amount to the right to lay, maintain, and repair submarine cables being effectively impossible to exercise (Van Logchem Reference Van Logchem2014, 109).
There is little attempt in UNCLOS to distinguish between different types of submarine cables, suggesting that its provisions apply to the full range of cables (Burnett Reference Burnett2006, 232; Nandan and Rosenne Reference Nandan and Rosenne1993, 270; Takei Reference Takei2012, 207–208). Only Article 113 specifies its scope of application to extend only to certain types of cables – that is, high-voltage power cables and telegraphic and telephonic communication cables. Despite the provisions in UNCLOS applying to cables broadly, specific types of cables will be subject to another set of rules due to their use and location, pursuant to which the coastal State may assume jurisdiction. For example, if a submarine cable is used for the sole purpose of transmitting data gathered through an MSR project in relation to the continental shelf, it would be under coastal State jurisdiction, and coastal State consent would be required prior to the cable being laid, in accordance with Article 246(1) of UNCLOS. The same analysis would apply by analogy to an out-of-service telecommunication cable that is modified to collect oceanographic data (variant (a) in Section 10.1.2), which may convert it to an MSR activity in the process.
Another example is a telecommunication or power cable connecting different installations on the coastal State’s continental shelf. Due to the direct link with the exercise of sovereign rights it has over natural resources and their exploitation, this author suggests that the cable would fall under coastal State authority (UNCLOS, Article 79(4); Davenport Reference Davenport, Schreiber, Kraska and Kwon2015b, 222–223). Outside of cables making a landfall and the limitations allowed for under UNCLOS, coastal States cannot assume jurisdiction over activities related to transit cables in the EEZ or on the continental shelf. However, in certain respects, the practice of some coastal States has moved in the opposite direction, in that they claim to have jurisdiction over the laying, maintaining, and repairing of transit submarine cables on the continental shelf (Ford-Ramsden and Davenport Reference Ford-Ramsden, Davenport, Burnett, Beckman and Davenport2014, 146–151). Limitations imposed by coastal States on the right to conduct activities in the EEZ and on the continental shelf related to transit telecommunication cables are a thorn in the side of industry. A main concern is that multiplying the functionality of active telecommunication cables will lead to coastal States increasingly exerting jurisdiction over cable-related activities, whereby further complications are layered onto existing ones (Bressie Reference Bressie2012, 24).
10.2.2 Marine Data Collection
Marine data collection encompasses a variety of activities conducted to the common aim of enhancing the knowledge of the marine environment (Roach Reference Roach, Nordquist, Long, Heidar and Moore2007, 542). These activities fall into different categories and include activities conducted in the framework of MSR, operational oceanography, hydrographic surveys, and military surveys (Van Logchem Reference van Logchem2021b). Depending on the activity data collected, it may be subject to the rules in Part XIII of UNCLOS. Complicating matters is that UNCLOS does not define MSR in Part XIII, nor anywhere else in the text for that matter. Several attempts by States participating in the Third Law of the Sea Conference to include a definition of MSR during the negotiations for the Convention failed, and States failed to reach an agreement (Soons Reference Soons1982, 199; Walker Reference Walker2012, 241–245). Attention was rather directed at designing the substantive rules pertaining to MSR, whereby its contours would be illuminated in the process and alleviate the need for States to agree on a generally accepted definition – or so was the thinking (Soons Reference Soons1982, 123–124). Nonetheless, in the absence of an express definition, much ink has been spilled on how to define MSR. The absence of a definition in UNCLOS has been lamented, including because that it would lie at the roots of the divergent State practice that emerged around MSR/oceanographic data collection and for the difficulties it has created for the employment of SMART cables (see, for example, Davenport Reference Davenport, Schreiber, Kraska and Kwon2015b, 249–250). Differences as to what constitutes MSR have ranged from States that fall on the extreme end of the spectrum – claiming that all forms of marine data collection fall within the jurisdiction of coastal States, including operational oceanography and hydrographic or military surveying – to, on the other end, coastal States that view their jurisdiction as being limited to MSR proper (Churchill et al. Reference Churchill, Lowe and Sander2022, 783–787).
Nonetheless, irrespective of the lack of a universally accepted definition of MSR and divergent State practice, the contours of what constitutes MSR are increasingly clear. An MSR activity is generally understood to have two components: first, the research activity is aimed at furthering the knowledge of humankind on the marine environment; and, second, the results are publicly disseminated (Soons Reference Soons1982, 124). Activities meeting this definition are within the authority of the coastal State, insofar as they occur within maritime zones over which it has sovereignty or jurisdiction. More specifically, the resulting picture is that MSR within the extent of the territorial sea is predicated on coastal State consent (UNCLOS, Article 245). This is further corroborated by Article 19(2)(j) of UNCLOS, which identifies the passage of a ship becoming non-innocent if it is involved in research or survey activities. Data that is gathered in passage for the sake of safe navigation of the ship (for example, the use of sonar to obtain information on ocean currents) remains beyond the reach of this provision (Soons Reference Soons1982, 149).
The conduct of MSR in the EEZ and on the continental shelf, as in the territorial sea, is subject to the consent of coastal States (UNCLOS, Articles 56(1)(b) and 246). Another similarity between the territorial sea and the EEZ/continental shelf is that the coastal State can impose conditions on the initiation and conduct of MSR projects. However, UNCLOS draws a distinction between two types of MSR projects in the EEZ and on the continental shelf: first, those projects for which the coastal State shall normally give its consent when a detailed application is made at least six months before the start of the project (Articles 248 and 249); and, second, MSR projects for which there is discretionary autonomy for the State to withhold its consent. In the latter case, a coastal State may, inter alia, exercise its discretion to withhold consent to MSR projects in the EEZ/continental shelf that hold significance for the exploration and exploitation of natural resources (Article 246(5)(a)), or envision the emplacement or operation of installations and structures (Article 246(5)(c)), or if the research involves drilling or setting off of explosives (Article 246(5)(b)). For all the categories of MSR, States seeking consent to conduct activities to this end will be under the additional obligations laid down in Articles 248 and 249 of UNCLOS. This includes offering the coastal State the opportunity to be part of the MSR project (Article 249(1)(a)) and making the collected information available as soon as practically possible (Article 249(1)(e)).
On the high seas, there is the right for all States to conduct MSR projects (Article 87(1)(f)), subject to the two parts of UNCLOS dealing with the continental shelf (Part VI) and MSR (Part XIII). Along similar lines, in the international seabed area, States and competent international organizations have the right to conduct MSR. This aligns with Part XI of UNCLOS, particularly Article 143, which requires MSR projects to be for peaceful purposes and to benefit all humankind. Beyond these two requirements, in both the high seas and the international seabed area, the right to conduct MSR has to be exercised with due regard to the rights of other States and other activities occurring in the international seabed area (Article 87(2)). Of further relevance is Article 258, which is concerned with the deployment of research installations or equipment in the marine environment. This provision may apply to SMART cables, due to the similarities they bear to installations in terms of their relative permanency (see Section 10.2.3).
From the range of activities falling within the ambit of marine data collection, could oceanographic data collection be an alternative categorization for SMART cables (Davenport Reference Davenport, Schreiber, Kraska and Kwon2015b, 224)? Two components are attached to “operational oceanography”: it must involve the routine collection of oceanographic data, which subsequently is made immediately and generally available. It may be defined as follows: “an activity of systematic and long-term routine measurements of the seas and oceans and atmosphere, and their rapid interpretation and dissemination” (Davenport Reference Davenport, Schreiber, Kraska and Kwon2015b, 234). Although the obtained data may produce knowledge similar to the data gathered under the umbrella of an MSR project, in that it benefits humankind as a whole, the main usage of operational oceanographic data is in the realm of the safety of navigation (Kraska Reference Kraska, Nguyen and Dang Vu2024, 44–45). Beyond that, general controversy surrounds this category of oceanographic data collection, or – as it is regularly referred to – operational oceanography. One main issue is whether this routine collection of oceanographic data is really an MSR activity in disguise (Mateos and Gorina-Ysern Reference Mateos and Gorina-Ysern2010; Whomersley Reference Whomersley, Zou and Telesetsky2021, 29). These differences were mirrored in the practice of States in relation to the “Argo Project” pursuant to which several thousands of monitoring devices that gathered marine meteorological data were deployed on the high seas (Davenport Reference Davenport, Schreiber, Kraska and Kwon2015b, 234–235). However, as these devices freely drifted throughout the sea, they sometimes entered into the EEZs of coastal States. Some coastal States were concerned and deemed them to be engaging in MSR, for which coastal State consent is required (Mateos and Gorina-Ysern Reference Mateos and Gorina-Ysern2010). Both the controversial status of the collection of oceanographic data (whether or not it qualifies as MSR) and the specifics of SMART cables put into doubt whether they can be easily brought under this rubric. This is because the data collected through these SMART cables is not immediately disseminated, and nor is it collected with the explicit aim of enhancing the safety of navigation. Another aspect that makes it difficult to bring SMART cables under the reach of this “operational oceanography” is that, in contrast to ships or floating equipment routinely collecting data, SMART cables are of a more permanent character, as they are on the seafloor. All this points in the direction that, from the range of activities that equally fall within the scope of marine data collection, SMART cables are an MSR activity (Carter and Soons Reference Carter, Soons, Burnett, Beckman and Davenport2014, 335).
10.2.3 The Future of SMART Cables
A logical corollary to SMART cables being a technological development that came after UNCLOS is that none of its provisions have been specifically tailored to this type of cable. This does not render UNCLOS inconsequential, however, as it has the capacity to continue to apply to new technological developments. The legal regimes in Parts VI and XIII are relevant to SMART cables (Strati Reference Strati2011). SMART cables are in situ in the marine environment and have this same environment as their object on which to collect data, beyond transporting international communications, which clearly raises the specter that they fall within coastal State jurisdiction, depending on their location.
More specifically, on the high seas and in the international seabed area, there exist the two freedoms to lay transit cables (UNCLOS, Article 87) and conduct activities in the framework of MSR (Articles 87(1)(f), 256, and 257). By the same token, coastal States cannot claim jurisdiction over SMART cables. Rather, the jurisdictional competence lies with “the national State of the entity laying or using the cable” (Carter and Soons Reference Carter, Soons, Burnett, Beckman and Davenport2014, 336). In stark contrast, in areas that are part of the territory of the coastal State (internal waters, archipelagic waters, and the territorial sea), both the conduct of MSR and submarine cable activities fall within the sovereignty of the coastal State, allowing it to regulate SMART cables in a way it sees fit (Carter and Soons Reference Carter, Soons, Burnett, Beckman and Davenport2014, 334).
It is a tale of different worlds colliding for SMART cables that transit a coastal State’s EEZ or continental shelf. While submarine cables transiting the EEZ or continental shelf are largely placed outside the jurisdiction of the coastal State, apart from some limitations related to natural resources, MSR in the EEZ and on the continental shelf falls under the jurisdictional competence of the coastal State (see Sections 10.2.1 and 10.2.2).
Further, an argument has been made that if a submarine cable placed on the seabed collects data (that is, if it is a SMART cable), besides constituting MSR, it falls in the specific category of MSR projects for which the coastal State concerned would have the discretionary autonomy to withhold its consent when an application to that end is made (Carter and Soons Reference Carter, Soons, Burnett, Beckman and Davenport2014, 335). At the root of this argument lies an assumed similarity between a SMART cable and a structure: that is, their “semi-permanent character,” which would bring it under the reach of Article 246(5)(c) of UNCLOS (Carter and Soons Reference Carter, Soons, Burnett, Beckman and Davenport2014, 335). This argument that the cable has to be considered a structure has been extended by analogy to cables that collect data landing on shore or entering a coastal State’s territorial sea. If SMART cables would be considered a research structure, and given that they are placed on the seabed to remain in place for a longer period of time, the coastal State would have exclusive jurisdiction over the cables by way of Articles 60 and 80 of UNCLOS. Nonetheless, different views have been held in this regard, with Bressie assuming that definite judgment around the status of SMART cables as being also subject to the MSR regime cannot be made based on UNCLOS (Bressie Reference Bressie2012, 20). Underpinning this argument is the failure of UNCLOS to address the precise meaning of both “MSR” and a “submarine cable,” leaving the status of the latter up in the air in the absence of judicial pronouncement and/or customary international law having developed in either direction (Bressie Reference Bressie2012, 20).
As a general rule of thumb, legal difficulties and uncertainty tend to come to the forefront for SMART cables in the EEZ and concerning the continental shelf. By way of contrast, MSR is a high-seas freedom beyond areas of national jurisdiction. The argument that outfitting cables with sensors is absorbed by the freedom to lay transit submarine cables under Article 87 of UNCLOS, which by way of Article 58(1) of UNCLOS similarly applies in the EEZ, has little merit, particularly if account is taken of the fact that the oceanographic sensors are purposely added to telecommunication cables to provide them with the added functionality of data collection, which is a fundamentally different activity from transporting international communications. Attaching sensors is also not entangled with the right to lay transit cables in a way the two could not be seen in isolation, as is, for example, the case with repairing or maintaining a transit cable, or conducting a cable route survey prior thereto, which are all necessary components to be able to exercise this right. Viewed in this light, nor can the attaching of oceanographic sensors to telecommunication cables located in the EEZ be seen as a use related to the operation of such cables (UNCLOS, Article 58(1); Strati Reference Strati2011). Considering the above, the de lege lata suggests that MSR is the most proper categorization for SMART cables, whereby a need for obtaining coastal State consent is activated prior to their employment in certain parts of the seas (Carter and Soons Reference Carter, Soons, Burnett, Beckman and Davenport2014, 335).
10.3 The Protection of SMART Cables: New Wine in Old Wineskins?
Submarine cables are inherently vulnerable because of their design, being just a few centimeters in width and made of fiberglass encased by plastic (Carter et al. Reference Carter, Burnett, Drew, Marle, Hagadorn, Bartlett-McNeil and Irvine2009, 8). This is reflected in submarine cable protection being a topic whose relevance coincides with the inception of cables in the nineteenth century (Wargo and Davenport Reference Wargo, Davenport, Burnett, Beckman and Davenport2014, 255). Cables within shallower waters with depths of less than 100 m are especially vulnerable, since human activity tends to intensify there (Aw Reference Aw2024, 136). To avoid such waters completely is impossible, as landfall must be made somewhere; therefore, cables are often provided with a layer of additional encasement and buried into the subsoil. At the same time, cable breaks are not isolated to shallow waters, although those are more infrequent. An example is the breakage of a fiber-optic cable located in deeper waters that connect the Shetland Islands to the Faroe Islands, which is part of the SHEFA-2 system, in 2022 (Van Logchem Reference van Logchem2022). Beyond the territorial sea, cables are more regularly placed directly on the seabed, which is mostly for reasons of cost and the lesser likelihood of accidentally damaging these cables (Carter et al. Reference Carter, Burnett, Drew, Marle, Hagadorn, Bartlett-McNeil and Irvine2009, 30–31).
Different degrees of damage can be identified when a cable exhibits a fault, ranging from minor damage to its outer insulation to the full breakage of a submarine cable (Wargo and Davenport Reference Wargo, Davenport, Burnett, Beckman and Davenport2014, 256). Cable faults are ordinary occurrences during a cable’s life cycle, which is normally around twenty to twenty-five years (Rapp Reference Rapp2010). Most cable faults can be retraced to forces lying outside the cable. Two sources of cable fault fall into this category: first, those that result from human activity; and, second, those caused by natural events (for example, earthquakes and undersea tectonic movements). An example of a natural event is a rockfall in the Congo Canyon off the west coast of Africa in 2023, which damaged three telecommunication cables, affecting connectivity in several States (The Continent 2023). Natural events make up about 10 percent of cases where a cable has suffered injury (Carter Reference Carter, Burnett, Beckman and Davenport2014, 238). Although more infrequent, their impact on cables tends to be significant, regularly wiping out large numbers of cables simultaneously. The Hengchun earthquake of 2006 illustrates this, as eight cables were cut, which affected several States (China, Japan, Singapore, and South Korea) for a prolonged period of time (ICPC 2009).
A logical corollary to the fact that only 10 percent of cable damage is the result of natural causes is that most damage results from human activity, particularly bottom fishing and anchoring (Wargo and Davenport Reference Wargo, Davenport, Burnett, Beckman and Davenport2014, 257). The risks associated with anchoring rose to the fore in 2007 and 2008. Then, the Straits of Malacca and Singapore filled up with ships for which there was a dearth of work because of grim economic tidings. To avoid having to pay fees, several ships began anchoring outside of the designated zones, causing around twenty cable faults in these straits (Wargo and Davenport Reference Wargo, Davenport, Burnett, Beckman and Davenport2014, 257–258). Theft of submarine cables, because of their concentrations of copper, poses another threat. When, in 2007, fishing trawlers flying the Vietnamese flag removed 180 km of submarine cable with the aim of selling it on the black market, internet connection within Vietnam was seriously affected. It took over three months before the cable was restored to operation, which came at great cost, with estimations ranging from US$5.8 million to US$8 million (Raha and Raju Reference Raha and Raju2021, 3).
A further refinement is that the damage to cables due to human causes may be accidental or intentional. Although of late there is a tendency, especially in media, to ascribe cable damage automatically to malignant intent, it can be difficult to conclude this with certainty. In this vein, after the breakage of two cable segments of the same cable system, SHEFA-2, within a timespan of a few months in 2022, theories soon emerged that the cables were willfully damaged (Van Logchem Reference van Logchem2022). Contrary to this, the cable owner indicated that the cables broke because of either harsher weather conditions or the extensive fishing activity within the North Sea (Van Logchem Reference van Logchem2022). Admittedly, in other similar events there was probably foul play at hand. An example is the submarine cables providing internet connectivity to the Taiwanese Matsu Islands that have ended up cut with peculiar frequency and regularity. Because in these instances there is at least the suspicion of cables being intentionally targeted, the security angle for States is clearly brought into focus. Connected to this, such events have placed the issue of their legal protection, or arguably the lack thereof, into the limelight (see Section 10.3.1).
If a telecommunication cable exhibits a fault, the aspects of rerouting data traffic and the need for physical repair of the cable come into play. Rerouting is a common feature in the continuous provision of international communications by cable operators. If cable systems lack sufficient resiliency, rerouting data traffic away from the damaged cable may be impossible. For example, following the occurrence of a volcanic eruption in 2022, the sole cable on which the island State of Tonga is virtually dependent for maintaining its international communications broke, which isolated Tonga from the rest of the world (Seselja and Ewart Reference Seselja and Richard2022). Other small island States, including Kiribati, are similarly reliant on an individual cable (Guilfoyle et al. Reference Guilfoyle, Paige and McLaughlin2022, 659–660). Despite their resiliency, if too many cables of the same system are simultaneously incapacitated, data transmission might still be severely impacted. In this light, to ensure resiliency of cable systems, the cable(s) exhibiting fault must be repaired in a timely fashion. The logic behind this is simple: while the cable is out of order, it cannot fulfill its backup role for when another cable, part of the same cable system, exhibits a fault.
Repair operations require the cable to be physically retrieved from the seabed and loaded onto a cable ship. Typically such repair operations last between one and two weeks. Only a small number of companies have the necessary means, including cable ships, for such repair operations (Ford-Ramsden and Burnett Reference Ford-Ramsden, Burnett, Burnett, Beckman and Davenport2014, 155). Complicating matters further is the fact that some time may lapse before the necessary State authorizations are in place and repairs can begin. Reasons for this include the procedures certain coastal States have in place for when a fault occurs in a cable located within their maritime zones. Following the Hengchun earthquake, for instance, repairing the damaged cables was complicated and severely delayed by lengthy and multiple permit requirements (Van Logchem Reference Van Logchem2014, 113). Whether the possibility to make repairs is entwined with obtaining coastal State authorization varies with where the transit cable is located. Only repair operations conducted within maritime areas where the coastal State has sovereignty (that is, internal waters, the territorial sea, and archipelagic waters) would require consent according to international law. However, certain States – including China, India, and Vietnam (Aw Reference Aw2024, 137–138) – have regulations and laws on the books that require prior permission before the necessary repair works to a damaged transit telecommunication cable lying on the continental shelf can be made (Ford-Ramsden and Burnett Reference Ford-Ramsden, Burnett, Burnett, Beckman and Davenport2014, 169; Van Logchem Reference Van Logchem2014, 113). The permission requirement set by China and India is underpinned by security concerns.
Cable protection is a theme whose relevance cuts across the full spectrum of submarine cables. However, perceivably, SMART cables come with added security concerns, because they may serve as sensors for military purposes. For example, the obtained information could shine a light on ship location, which carries security or military implications. In this light, SMART cables may rise higher on the list of targets by those of ill-will and intent. This will raise not only the specter of sabotage but also generate coastal state countermeasures to ensure offshore security.
10.3.1 A Flawed International Legal Regime?
Given their critical nature, also for society, submarine telecommunication cables require adequate protection (Beckman Reference Beckman, Burnett, Beckman and Davenport2014, 281; UNGA 2011, 121, 2023, 125). Irrespective of it being mostly private actors who conduct activities related to such cables, States retain a critical role in this respect. Among others, they have the responsibility to ensure that cable systems are sufficiently resilient, that such systems meet safety and security requirements, and that repairs can be made as swiftly as possible when such infrastructure is damaged. The need for State involvement has become only more pressing with submarine cables increasingly being viewed through the specter of security. As discussed in Section 10.3, this security angle for States is clearly brought into focus, as instances are on the rise where there is at least the suspicion of cables being intentionally targeted – for example, in the Taiwan Strait. Another example is the Balticconnector incident of 2023, when several submarine telecommunication cables were cut by the NewNew Polar Bear, flying the flag of Hong Kong (Ringbom and Lott Reference Ringbom, Lott and Lott2024, 155). But is the international legal framework adequately equipped for ensuring their protection?
A key feature of the international legal framework pertaining to the protection of submarine telecommunication cables is that it is antiquated (Beckman Reference Beckman2010, 7; Takei Reference Takei2012, 207–208; Van Logchem Reference van Logchem2021a). There is a handful of provisions in UNCLOS on cable protection in the EEZ and the high seas – that is, Articles 113–115. These provisions have their roots in the 1884 Cable Convention, which marks the birth of the legal regime for the protection of submarine cables. The 1884 Cable Convention bears the hallmarks of its time, among which is its focus on telegraphic cables. It formed the culmination of several diplomatic efforts that began in earnest in 1882, which was when cables were first laid on the seabed (Burnett et al. Reference Burnett, Davenport, Beckman, Burnett, Beckman and Davenport2014a, 65). Under the 1884 Cable Convention, competing fishing activities taking place outside the “territorial waters” of coastal States were recognized as one of the preeminent threats to cables. The 1884 Cable Convention is unique, being the only international treaty exclusively concerned with submarine cables. However, it cannot be considered overly successful, as only forty States became parties to it. Despite its limited success in attracting State participation, the 1884 Cable Convention has shaped the subsequent direction of the international law on the protection of submarine cables. This is reflected in the fact that the relevant provisions in UNCLOS (Articles 113–115) are lifted almost verbatim from the 1884 Cable Convention.
The scope of application of Articles 113–115 of UNCLOS on cable protection is limited to areas lying beyond the extent of the territorial sea. As a corollary, UNCLOS does not contain a provision obligating coastal States to adopt laws and regulations to protect submarine cables within their territory, including in port or in the territorial sea. It has been alleged that this was underpinned by the thinking at the Third Law of the Sea Conference that there was no need to introduce a provision on cable protection in the territorial sea, as States themselves would recognize the importance of properly regulating this domestically (Beckman Reference Beckman, Burnett, Beckman and Davenport2014, 287). Contrary to expectations, however, this has not been reflected in the practice of all States (Beckman Reference Beckman, Burnett, Beckman and Davenport2014, 287).
Under Article 113, the breaking or injuring of a submarine cable located beneath the high seas (or the continental shelf/EEZ) through willful or culpable negligence is addressed. It places the burden of regulation on the flag state or on a State that otherwise has jurisdiction over the persons involved. Conduct that is calculated or likely to result in the breaking or injuring of a submarine cable is also caught under this provision. This is an innovation in UNCLOS, as the provisions developed along similar lines in both the 1884 Cable Convention (Article II) and the 1958 Convention on the High Seas (Article 27) lack this language. In its commentary to Article 62 of the 1956 Draft Articles on the Law of the Sea, whose content resembles Article 113 of UNCLOS, the International Law Commission indicated that a precondition for culpable negligence is that the damaged cable has been clearly marked on charts (ILC 1956, 294). From Article 114 of UNCLOS flows the obligation for States to regulate when, in the laying or repairing of a new submarine cable, a break or injury is caused to an in situ submarine cable for which the owner of the new cable is liable. The extent of liability is confined to the repair costs of the damaged cable; for other types of damage, no civil liability exists. Article 115 of UNCLOS approaches the issue from a different angle: that is, if, in attempting to avoid damaging a submarine cable, an anchor, net, or fishing gear must be sacrificed, the cable owner, assuming that it has “taken all reasonable precautionary measures,” will be indemnified.
Different weaknesses around cable protection arise depending on whether it involves maritime areas that are within functional coastal State jurisdiction (the EEZ and the continental shelf) or under coastal State sovereignty – for example, the territorial sea. Because coastal States enjoy sovereignty over their territory, various options to protect cables are part of their arsenal in the territorial sea, including designating areas where ships cannot anchor, or setting a cable burial requirement. The other side of the sovereignty coin is that States are not obligated to exercise any of the powers they have by international law, leaving this to their own discretion. As many of these cables in the territorial sea are likely to make a landfall, coastal States have an interest in ensuring that these cables enjoy adequate protection.
Outside the territorial sea, the picture fundamentally changes, in that more emphasis is placed on what often will be the role of the flag State. Tied to this, the challenges that have arisen in respect of flag State jurisdiction and control, including around flags of convenience, rise to the fore (Van Logchem Reference van Logchem, Smits, Husa, Valcke and Narciso2023, 421–428). Despite the obligations in Articles 113–115 of UNCLOS to introduce domestic legislation, State practice differs on this point. Relevant laws may not exist; or, alternatively, if laws are on the books, they may exhibit deficiencies or be out of pace with the present times (House of Lords 2022, 77; Wargo and Davenport Reference Wargo, Davenport, Burnett, Beckman and Davenport2014, 262–263). Another issue is whether these laws are actually enforced by, for example, flag States, as significant strides would be made if the existing law was “effectively implemented and enforced by all States” (Mensah Reference Mensah and del Castillo2015, 739).
10.4 Conclusion
By incorporating oceanographic sensors into fiber-optic telecommunication cables, significantly more oceanographic data could be collected than before with relative ease and at a low cost. This is enabled by the vast network of telecommunication cables that underpins the continuous flow of international voice and data traffic. The oceanographic sensors gather information on the climate and the oceans (for example, to measure changes in water temperature or sea-level rise) and for predicting natural disasters (for example, tsunamis and earthquakes). Attempts to improve matters on both fronts are hampered by the fact that the oceans remain poorly understood, especially the deep-ocean environment. The dearth of available data on the oceans affects, inter alia, how disasters, such as underwater earthquakes, can be predicted reliably. However, SMART cables are not a panacea for plugging the full scientific knowledge gap that exists today. While the global network is extensive, most submarine cables are located in the northern hemisphere. SMART cables thus complement (not replace) other means of oceanographic data collection (Howe et al. Reference Howe, Arbic, Aucan, Barnes, Bayliff, Becker, Butler, Doyle, Elipot, Johnson, Landerer, Lentz, Luther, Müller, Mariano, Panayotou, Rowe, Ota, Song, Thomas, 303Thomas, Thompson, Tilmann, Weber and Weinstein2019, 3).
SMART cables fall into three categories: (a) out-of-service telecommunication cables that are repurposed for data collection and transmission; (b) in situ and active telecommunication cables that are outfitted with oceanographic sensors; and (c) new cables that have the built-in dual function of transmitting international communications and oceanographic data collection. Depending on the type of SMART cable involved, different legal challenges and uncertainties emerge. On the low end of the spectrum are out-of-use service telecommunication cables, which are repurposed to exclusively collect and transmit oceanographic data (category (a)). Their exclusive usage in this context would render them MSR cables. At the high end of the spectrum are the two other categories of SMART cables.
An important variable in this regard is, however, whether the SMART cable is to make a landfall. If so, and irrespective of whether one adheres to the view of these cables being subject to the MSR regime, the laying of the cable concerned would fall under the authority of the coastal State. In a general sense, the picture that emerges for SMART cables, both landing and transiting ones, is that there will be coastal State authority (see Section 10.2.1) in those maritime areas where the coastal State has sovereignty (in internal waters, archipelagic waters, and the territorial sea) over cables and MSR (as well as other types of marine data collection). Most of the difficulties arise when SMART cables transit the EEZ or the continental shelf. Behind this lies the fact that SMART cables combine two aspects that are either beyond (the fact of being transit telecommunication cables) or within (the MSR component) coastal State jurisdiction.
Due to this duality, the data collection component must be viewed as separate from the right to lay, repair, or maintain transit submarine cables. To paraphrase the language of UNCLOS, attaching oceanographic sensors to active telecommunication cables – whereby they also actively collect data – cannot be interpreted as inherent to the freedom of laying transit submarine cables. Rather, due to its MSR component, which is a layer added to a telecommunications cable, SMART cables are subject to two contending legal regimes. Thus, within the EEZ and on the continental shelf, SMART cables are subject to coastal State consent, having to be considered as activity conducted in the framework of MSR (Burnett Reference Burnett2011). And a good argument can be made – as discussed in Section 10.2.3 – that there is discretion for the coastal State to withhold consent based on SMART cable systems being akin to a semi-permanent structure on the seabed (UNCLOS, Article 258). On the converse, beyond maritime areas where the coastal State has jurisdiction – that is, in the high seas and the international deep seabed – the freedoms to lay transit cables and to conduct MSR simultaneously exist, enabling SMART cables to be freely employed there.
But in which direction does the pendulum swing for SMART cables? As a positive, they allow the scientific opportunity to gain a better understanding of the (marine) environment that leads to significant societal benefit. However, care must be taken not to put into jeopardy the primary function telecommunication cables fulfill. Concerns of this nature are echoed by the submarine cable industry, which is the main background to SMART cables receiving a more lukewarm response from industry (Davenport Reference Davenport, Schreiber, Kraska and Kwon2015b, 247). Keeping fiber-optic cables operational is key for the functioning of the global telecommunications network (for example, the internet, or financial and security systems; Carter et al. Reference Carter, Burnett, Drew, Marle, Hagadorn, Bartlett-McNeil and Irvine2009, 8). Despite there being a clear scientific imperative, the concomitant international legal dimension makes it difficult at times fully to tap the promise that SMART cables hold, scientifically speaking. The severity of some of these challenges will render the general idea behind turning telecommunication cables into SMART cables – whereby the full force of this vast offshore communication infrastructure can be harnessed for oceanographic data collection – closer to a pipedream. At the core of the difficulties that arise is their dual use, because of which SMART cables, depending on their specifics and location, are subject to two conflicting legal regimes. This clash of regimes is particularly visible for SMART cables that are intended to transit a coastal State’s EEZ or continental shelf, with there being the freedom to lay transit submarine telecommunication cables in these areas (see Section 10.2.1). A contrary picture emerges for MSR in the EEZ and on the continental shelf, which are under coastal State jurisdiction (see Section 10.2.2). Linked to this, such assertions of coastal state jurisdiction based on SMART cables being MSR cables create difficulty in conducting activities related to telecommunication cables for the industry (see Section 10.2.3).
While the view that SMART cables are subject to the MSR regime is not devoid of controversy, it is clear that different legal arguments are garnered in support of whether SMART cables are, or are not, subject to the MSR regime, beyond the cable regime. These divergent views may be mirrored in the practice of States, and concerns around coastal States expanding their jurisdictional reach as a result are unlikely to be imaginary (Davenport Reference Davenport, Schreiber, Kraska and Kwon2015b, 247). In such a vein, Japan would be against the deployment of SMART cables (Palmer-Felgate Reference Palmer-Felgate2016). Other States may be more receptive to SMART cables, due to the direct benefits that would be generated from their employment – for instance, small island States that are particularly affected by climate change or vulnerable to natural disasters. Divergent State practice can hamper the widespread introduction of SMART cables. As an alternative, a more watered-down approach to the use of SMART cables – one that is built around pragmatism – seems to be the way forward (Howe et al. Reference Howe, Arbic, Aucan, Barnes, Bayliff, Becker, Butler, Doyle, Elipot, Johnson, Landerer, Lentz, Luther, Müller, Mariano, Panayotou, Rowe, Ota, Song, Thomas, 303Thomas, Thompson, Tilmann, Weber and Weinstein2019, 19). Its specifics are tailored in a way that either avoids or addresses the complex legal challenges and uncertainties. This would have to include avoiding the EEZs or continental shelves of those coastal States that consider SMART cables to be subject to the MSR regime, or that have not explicitly agreed to a SMART cable system. Although the future of SMART cables is not necessarily bleak, at present it is laden with some uncertainties and legal challenges that single-use cables do not face.
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