Submarine Cables and the UNCLOS - · PDF fileSubmarine Cables and the UNCLOS 2016 ABNJ Regional Leaders Program New York, NY 25 March 2016 Douglas R. Burnett International Cable Law

Submarine Cables and the UNCLOS

2016 ABNJ Regional Leaders Program New York, NY 25 March 2016 Douglas R. Burnett International Cable Law Advisor International Cable Protection Committee Partner, Transportation, Shipping, and Logistics Practice Group, Squire Patton Boggs (US) LLP

2 squirepattonboggs.com

Submarine Cables Carry over 97% of the world’s international voice, video, and data


Submarine Cables –is the Cloud under the sea?

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Submarine Cables; Driving the Demand……..

Source: IBM

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5

The Growing Data Centres

Sources – each company website 5


“Cyberspace, in the physical form of undersea fiber-optic cables, carries an even greater value for trade [than shipping goods] through financial transactions and information.” Greenleaf and Amos, “A New Naval Era” U.S. Naval Institute Proceedings, June 2013, at 17

Courtesy WFN Strategies


98% Of All International Voice, Data, Video, and Internet Traffic Is On Submarine Cables

§  Each day the Society for Worldwide Interbank Financial Telecommunications

(SWIFT) transmits about 15 million messages to more than 8300 banking organizations, securities intuitions, and corporate customers in 208 countries. The United States Clearing House for Interbank Payment System (CHIPS) process over USD 1 Trillion per day to more than 22 countries for all manner of commodity exchanges, investments, and securities.

§  “Functioning as the backbone of the international telecommunications system, submarine cables are a fundamental component of the critical global infrastructure and play a direct role in sustainable industrialization: indirectly they contribute to all other areas recognized for sustainable development.” Oceans and the law of the Sea, Report of the Secretary-General, A/70/74, 30 March 2015


“When the communication [cable] networks go down, the financial sector does not grind to a halt, it snaps to a halt.” Malphrus, Board of Governors of the Federal Reserve, 3-5 May 2010. Seven facts policy makers need to know: 1. There is no single global submarine network any more than there is a single world airline network (about 236 cable systems = 997,336 KM). 2. Cable systems are generally owned by consortia of 4-30 private companies or on occasion a single company-About 99% are non-government owned. Cable systems are not “flagged” to any one State. 3. Cable repair is organized regionally by private contract-not by government mandate. Contracts require repair ships to sail within 24 hours; GOAL = FAST RESPONSE. 4. There are about 59 cable ships in the world, about half are on stand-by and half laying new cables or other tasks(training, maintenance) 5. Cable ships are expensive, custom built, conspicuous, require specialized crews, and fly diverse flags (UK, France, Marshall Islands, Singapore, Japan, China, Korea, UAE, Indonesia)=COMPETITIVE RATES + EFFICIENCY 6. Cable repairs are urgent not only to restore service, but because each cable acts as the backup for other cables=RESILIENCY 7. Cables have a neutral to benign environmental footprint on the seabed


Cable Route Planning & Repair

§  Submarine Cables ‐ Resilient but Vulnerable •  Submarine cable routes are planned with great care to avoid natural hazards

which may cause damage and cable breaks. Desktop Studies and Marine Surveys are undertaken to assess and refine cable routing. Complex maritime claims require careful route planning and negotiation with Coastal States, fishing groups and offshore interests. Cable armouring and cable burial are applied where hazards cannot be avoided. Charting of cables and other cable awareness methods are used to warn fishing vessels and commercial vessels of cable locations.

•  Despite these measures, not all risk and hazards can be completely eliminated; there are approximately 150 to 200 cable faults globally each year, but few in ABNJ where all cables are unburied.

•  Fortunately, modern high capacity submarine cable systems are built with high reliability and fault tolerance. External redundancy and diverse routes provide alternate paths.

•  However, faulted cables must be repaired rapidly because additional faults impact alternative paths.

•  The submarine cable industry has established Zone and Private Maintenance Agreements around the world, each equipped with dedicated vessels to enable rapid repair.


Cable Repair Ships

•  Specialized purpose built cable ships are used for submarine cable installation and maintenance. Reliance class is a typical example:

Image Source: TE Subcom

•  Highly Experienced Marine Team

•  Proven Heavy Weather Capable •  Equipped for Installation and Maintenance

•  Highly manoeuvrable w/full Dynamic Positioning

•  60 MT A Frame

•  Plow and ROV equipped •  Full Cable Jointing & Testing Facilities

•  Purpose Built: 2001-2003

•  140 m length •  5500 + MT cable capacity

•  84 persons

•  60+ days endurance

Objective is cable repair, vessel not equipped for natural resource exploration


Zone Cable Maintenance Agreements

= Orange/GMSL (ACMA) Brest, France; Portland, UK; Curacao = Orange/Elettra (MECMA) La Seyne Sur Mer, France; Catania, Italy = Orange (2OCMA) Cape Town, South Africa = GMSL (NAZ) Victoria, Canada = KCS/KTS/SBSS (YZ) Yokohama, Japan; Keoje, Korea; Wujing, China = ACPL/IOCPL/GMSL Singapore; Colombo, Sri Lanka; Manila, Phillipines (SEAIOCMA)

NAZ – North America Zone ACMA – Atlantic Cable Maintenance Agreement MECMA – Mediterranean Cable Maintenance Agreement SEAIOCMA – South East Asia and Indian Ocean Cable Maintenance Agreement YZ - Yokohama Zone

Companies/Zones Base Ports


Private Cable Maintenance Agreements

Map courtesy of TE SubCom

= ASN / Calais, France; Cape Verde; Curacao (APMA) TE SubCom Taichung,Taiwan (APMMSA) = TE SubCom Portland, USA (NPMMSA) = ASN Noumea, New Caledonia (SPMA) = eMarine Hamriya, UAE; Salalah, Oman

APMA

SPMA

NPMMSA

E Marine

APMMSA

APMA - Atlantic Private Maintenance Agreement, including Med APMMSA - Asia Pacific Marine Maintenance Service Agreement NPMMSA - Northern Pacific Marine Maintenance Service Agreement SPMA - South Pacific Maintenance Agreement Red Sea, Arabian Gulf, Indian Arabian Sea

Companies Base Ports

APMMSA

Copyright International Cable Protection Ltd. All rights reserved. Use, disclosure, or distribution of this material to any unauthorized person or third party without the written permission of ICPC Ltd.

Marine Maintenance in the Zones – Results

Marine Maintenance in the Zones – Results

Copyright International Cable Protection Ltd. All rights reserved. Use, disclosure, or distribution of this material to any unauthorized person or third party without the written permission of ICPC Ltd.

Marine Maintenance & Repair Commencement Times 2008-2014 - Results

Notified to Departure times are categorised as follows: Green = less than 5 days, Orange = 5 to 10 days, Red = more than 10 days


§ 1884 Submarine Cables Convention § 1958 Continental Shelf Convention (N/A in ABNJ) § 1958 High Seas Convention § 1972 Collision Regulations § 1982 Law of the Sea Convention § Most comprehensive is LOS Convention

Treaties and Agreements with Express Reference to Submarine Cables


§  The preamble of UNCLOS state, in part: §  Recognizing the desirability of establishing through this Convention, with due regard

to the sovereignty of all States, a legal order for the seas and oceans which will facilitate international communication…

§  The official position of the UN on this issue: §  “Beyond the outer limits of the 12NM territorial sea, the coastal State may not (and

should not) impede the laying or maintenance of cables, even though the delineation of the course for laying of pipelines [not cables] on the continental shelf is subject to its consent”

§  Response to Question #7, Frequently Asked Questions at UN website: www.un.org/Depts/los/LEGISLATIONANDTREATIES/frequently_asked_questions.htm

United Nations Convention on the Law of the Sea (1982)


Territorial Sea

§ Maximum of 12 nautical miles from shoreline § Coastal State may adopt laws and regulations

to protect cables in its territorial sea § Article 21(1)(c) can restrict innocent passage


Archipelagic States

§ Archipelagic State must §  respect existing cables laid by other states

and passing through its archipelagic waters § permit maintenance and replacement of such

cables § Article 51(2) establishes a “notification regime

for existing cables but not for new cables


Article 78. Legal Status of superjacent waters and air space and the rights and freedoms of other States.

1.  The rights of the coastal State over the continental shelf do not affect the legal status of the superjacent waters or of the air space above those waters.

2.  The exercise of the rights of the coastal State over the continental shelf must not infringe or result in any unjustifiable interference with navigation and other rights and freedoms of other States as provided for in this Convention.


Article 79. Submarine cables and pipelines on the continental shelf

1. All States are entitled to lay submarine cables and pipelines on the continental shelf, in accordance with the provisions of this article.

2. Subject to its right to take reasonable measures for the exploration of the continental shelf, the exploitation of its natural resources and the prevention, reduction and control of pollution from pipelines, the coastal State may not impede the laying or maintenance of such cables or pipelines.

3. The delineation of the course for the laying of such pipelines on the continental shelf is subject to the consent of the coastal State.


Article 79. Submarine cables and pipelines on the continental shelf

4. Nothing in this Part affects the right of the coastal State to establish conditions for cables or pipelines entering its territory or territorial sea, or its jurisdiction over cables and pipelines constructed or used in connection with the exploration of its continental shelf or exploitation of its resources or the operations of artificial island, installations and structures under its jurisdiction.

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


Article 58. Rights and duties of other States in the exclusive economic zone

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

2. Article 88 to 115 and other pertinent rules of international law apply to the exclusive economic zone in so far as they are not incompatible with this Part.


Article 112. Right to lay submarine cables and pipelines

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

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


Article 113 (1982) Breaking or injury of a submarine cable or pipeline

§  Every State shall adopt the laws and regulations necessary to provide that the breaking or injury by a ship flying its flag or by a person subject to its jurisdiction of a submarine cable beneath the high seas done willfully or through culpable negligence, in such a manner as to be liable to interrupt or obstruct telegraphic or telephonic communications, and similarly the breaking of a submarine cable, pipeline, or high voltage power cable, shall be a punishable offense. This provision shall apply to conduct calculated or likely to result in such breaking or injury. However, it shall not apply to any break or injury caused by persons who acted merely with the legitimate object of saving their lives or their ships, after having taken all necessary precautions to avoid such breaks or injuries.


Article 114 (1982) Breaking or injury by owners of a submarine cable or pipeline of another submarine cable or pipeline

§ Every State shall adopt the laws and regulations necessary to provide that, if persons subject to its jurisdiction who are the owners of a submarine cable or pipeline beneath the high seas, in laying or repairing that cable or pipeline, cause a break in or injury to another cable or pipeline, they shall bear the cost of the repairs.


Article 115 (1982) Indemnity for loss incurred in avoiding injury to a submarine cable or pipeline

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


Article 297. Limitations on applicability of section 2.

1.  Disputes concerning the interpretation or application of this Convention with regard to the exercise by a coastal State of its sovereign rights or jurisdiction provided for in this Convention shall be subject to the procedures provided for in section 2 in the following cases:

(a) When it is alleged that a coastal State has acted in contravention of the provisions of this Convention in regard to the freedoms and rights of navigation, overflight or the laying of submarine cables and pipelines, or in regard to other internationally lawful uses of the sea specified in article 58;


Coastal State encroachment on freedom to lay cables that transit continental shelf

§ A State charges an annual fee or tax for any international cable system that merely transits the area it claims as part of its continental shelf, even though the cable system at no point lands in the State or enters its territorial sea. The fee is accessed on a per kilometer basis and amounts to about 2.5M euros over the life of the cable system.


Case Study Malta


Coastal State encroachment -The Dilemma - Setting the Scene


The Dilemma - Setting the Scene


The Warning

“Our [USACE] jurisdiction extends out up to 200 nautical miles (nm) as a potential navigation hazard per the Outer Continental Shelf Lands Act (OCLA). This was communicated to your ERM consultant .. . You are cautioned that commencement of the proposed work in waters of the United States subject to U.S. Army Corps of Engineers' jurisdiction prior to a DA authorization would constitute a violation of Federal laws and subject you to possible enforcement action. Receipt of a permit from other agencies does not obviate the requirement for obtaining a DA permit prior to commencing the proposed work. ”


CRUCIAL FACTS - Laying the Ground for a Diplomatic Solution

•  Permit application with USACE for Puerto Rico Landing pending 19 months

•  International cable system linking 6 nations 88% installed •  Uninstalled Trunk segment 135 nm off Puerto Rico in US EEZ •  Permission to lay missing trunk segment only requested leaving

Puerto Rico landing segment undisturbed •  French flag cable ship available to complete within a forecast

favorable weather window •  Local remedies in US exhausted •  France, the Flag State, a party to UNCLOS, US not. US, the Coastal

State, party to Geneva Convention on High Seas, France not.


Flag State Intervention


Flag State Intervention

•  White Paper prepared for consideration by French Ministry of Foreign Affairs

•  Based on White Paper, facts, carefully system planning and permit documentation efforts, and the to assist its citizen and French flag ship, France acted diplomatically.

•  Within 2 weeks of France’s diplomatic intervention, the following was received:

•  “I have been asked to advise you that a decision has been reached concerning the US Army Corps of Engineers regulatory responsibility over cable laying activities on the seabed, specifically within the Exclusive Economic Zone (EEZ) under the Outer Continental Shelf Act (43 U.S.C 1333(e)). We have concluded that we will limit our regulatory authority up to but not exceeding 12 nautical miles seaward.”


1.  For water depths over 2000m, cables are laid directly on the seabed. There is no

requirement for protective burial hence seabed disturbance is minimal. 1,2 [Please note superscripts refer to appended references]

2.  Laying is planned to be an one-off operation in the 20-25 year design life of a cable, but faults may occur mainly via natural and human-related hazards. 3,4

3.  Overall, cable faults are few. Thus the seabed surface disturbance caused by recovery operations will be infrequent. When repairs are needed, grapnels used for cable recovery may disturb the seabed along metre-wide paths. The recovered cable is repaired and lowered to the seabed to minimise further disturbance.5,6 Again, a repair is planned to be a one-off-operation in a cables' remaining design life.

4.  The size of a cable in ABNJ depths is 17-21mm diameter, hence its physical foot print is small. 7,8

Summary of interactions between submarine telecommunications cables and the ABNJ marine environment .


5.  Cables are protected by a substantial sheath of marine grade polyethylene, which is inert in the ocean 9,10.

6.  Research into cables and benthic organisms living on and in the seabed show there is no statistical difference in the abundance and diversity for organisms living near and away from a cable. 11-13 Submarine cable DC power is low- .6 to 1 amp. (A laptop runs on about 3 amps and house current is 15-20 amps)

7.  Whale entanglements with cables ceased with the transition from telegraph to coaxial cables in the early 1960s. This change reflected improved cable design, laying techniques and seabed mapping. It should also be noted that ABNJ depths exceed diving limit of sperm whales (~2000m) - the species mainly involved in telegraph cable entanglements. 6

8.  Fish bites, including those of deep dwelling crocodile sharks, have affected cables, but numbers have reduced due to improved bite protection. Bite-related faults have not been reported since 2006. 4,6,14

Summary of interactions between submarine telecommunications cables and the ABNJ marine environment


Historical data for cables, fish, and whales-all oceans

Telegraphic Era Coaxial Era Fibre Era


9.  The risk from natural hazards is low with about four ABNJ (high seas) cable faults per 6 years . This reflects the non-seismic nature of much of the ABNJ and hence the low incidence of submarine landslides and turbidity currents 15. But earthquakes have caused cable breaks, on the Grand Banks in 1929. 16

10. Risks from climate change are low due to the ABNJ depths, which dampen more obvious effects of change over the upper ocean such as increased storminess and rising sea level17. Changes in the number/strength of eddies affecting are very likely to be within cable tolerances.



Other Environmental Considerations Since their inception, submarine cables have provided information and knowledge on the marine environment in collaboration with the science community. 1.  Recovered cables yielded biological samples for museum and university

collections.18 2.  Cables underpin the communications and data transfer for major ocean

observatories including Ocean Networks Canada and the Ocean Observatories Initiative. 19,20

3.  Cables have acted as sentinels of the deep ocean providing information on processes that shape the ocean floor such landslides and turbidity currents.21

4.  Discussions are underway between the industry, academia and the International Telecommunications Union regarding the feasibility of equipping cables with environmental sensors22 to monitor ocean change and hazards.

5.  Cables have a low carbon footprint .23 For a two day teleconference between Stockholm and New York lasting 8 hours/day, 5.7kg of CO2eq would be released compared to 1920kg emitted for the face-to-face meeting, which involved 16,000 km of air travel. This study shows the modest carbon footprint of submarine telecommunications and their contribution to reducing greenhouse gas emissions.

Submarine Cables-Environmental Considerations


Conclusion Submarine telecommunications cables have a minimal impact on the

deep ocean environment e.g. 23, a conclusion is supported available scientific information 1,2. Focus on peer-reviewed research reflects the long-standing and continuing association with the science community that began with deployment of the first trans-oceanic cable.



1.  Burnett, D.R., Beckman, R .C. and Davenport, T.M. 2014. Submarine Cables: the Handbook of Law and Policy. Martinus Nijhof Publishers. ISBN 978-90-04-26032-0.

2.  UNEP/ICPC, 2020. Submarine Cables and the Oceans – Connecting the World. UNEP-WCMC Biodiversity Series No 31. ICPC/UNEP/UNEP-WCMC.

3.  Kordahi, M.E., Shapiro, S. & Lucas, G., 2007. Trends in submarine cable faults. Proceedings SubOptic 2007, Baltimore; paper We A1.2, 4 pp. http://www.scig.net/

4.  Drew, S., 2010. Submarine Cables and other maritime activities in Submarine Cables and the Oceans – Connecting the World. UNEP-WCMC Biodiversity Series No 31. ICPC/UNEP/UNEP-WCMC, p.43-48.

5.  Ford-Ramsden, K. and Burnett, D., 2014. Submarine cable repair and maintenance in Burnett, D.R., et al. Submarine Cables: the handbook of Law and Policy. Martinus Nijhof Publishers. ISBN 978-90-04-26032-0, p.155-177.

6.  Wood, M.P. & Carter, L., 2008. Whale entanglements with submarine telecommunication cables. IEEE Journal of Oceanic Engineering 33, 445-450

7.  Hagadorn, L., 2010. Inside submarine cables in Submarine Cables and the Oceans – Connecting the World. UNEP-WCMC Biodiversity Series No 31. ICPC/UNEP/UNEP-WCMC, p.43-48.

8.  Ford-Ramsden, K. and Davenport, T., 2014. The manufacture and laying of cables in Burnett, D.R., et al. Submarine Cables: the Handbook of Law and Policy. Martinus Nijhof Publishers. ISBN 978-90-04-26032-0, p.124-154.

9.  Saido, K et al, 2009. New Contamination Derived from Marine Debris Plastics 238th ACS National Meeting, 22-26 August 2009, Washington, DC.

10.  Andrady, AL , 2000. Plastics and their Impacts in the Marine Environment” Proceedings of the International Marine Debris Conference on Derelict Fishing Gear and the Ocean Environment, 6-11 August 2000, Hawaii.

11.  Kogan, I. et al, 2006, ATOC/Pioneer Seamount Cable After 8 Years on the Seafloor: Observations, Environmental Impact” Continental Shelf Research 26. 771-787.

12.  Andrulewicz, E. et al., 2003. The Environmental Effects of the Installation and Functioning of the Submarine SwePol Link HVDC Transmission Line: A Case Study of the Polish Marine Area of the Baltic Sea” Journal of Sea Research 49, 337-345.

SCIENCE/ENGINEERING BASED PEER REVIEW REFERENCES


13.  Grannis, B.M., 2001. Impacts of Mobile Fishing Gear and a Buried Fiber-optic Cable on Soft-sediment Benthic Community Structure. M. Sc. Thesis, University of Maine.

14.  International Cable Protection Committee, 1988. “Fish and Shark Bite Database” Report of the International Cable Protection Committee; Marra L.J. 1989, Shark bite with the SL submarine light wave cable system, IEEE Journal of Oceanic Engineering 14, 230-237.

15.  Pratson L.F. and Laine, E.P., 1989, The relative importance of gravity induced versus current-controlled sedimentation during the Quaternary along the mideast U.S. outer continental margin revealed by 3.5 kHz echo-character: Marine Geology, 89, 87-126.

16.  Heezen, B.C. & Ewing, M., 1952. Turbidity currents and submarine slumps, and the 1929 Grand Banks earthquake. American Journal of Science 250, 849-873.

17.  NOAA, 2012. US Climate Extremes Index; NE USA. National Climate Data Center, NOAA. http://www.ncdc.noaa.gov/extremes/cei/graph/ne/cei/01-12

18.  Ralph, P.M., and Squires D.F., 1962. The extant scleractinian corals of New Zealand. Zoology Publications, Victoria University of Wellington 29, 1-19.

19.  Ocean Networks Canada, 2014. About Ocean Networks Canada, http://www.oceannetworks.ca/about-us 20.  Ocean Observatories Initiative, 2014. http://oceanobservatories.org/ 21.  Carter, L., R. Gavey, P.J. Talling, and J.T. Liu, 2014. Insights into submarine geohazards from breaks in subsea telecommunication cables.

Oceanography 27(2):58–67, http://dx.doi.org/10.5670/oceanog.2014.40 22.  ITU/WMO/UNESCO/IOC, 2014. The scientific and societal case for the integration of environmental sensors into new submarine

telecommunication cableshttp://www.itu.int/dms_pub/itu-t/opb/tut/T-TUT-ICT-2014-03-PDF-E.pdf. 23.  Donovan, C., 2009, Twenty Thousand Leagues Under the Sea: A Life Cycle Assessment of Fibre Optic Submarine Cable Systems. Degree

Project, SoM EX2009-40 KTH Department of Urban Planning and Environment, Stockholm 24.  Department of Environment, Food and Rural Affairs, 2011. UK marine policy statement published.

http://www.defra.gov.uk/news/2011/03/18/marine-policy-statement/

SCIENCE/ENGINEERING PEER REVIEW REFERENCES


1.  Carter L., Burnett D., Marle G., Hagadorn L., Bartlett-McNeil D., Irvine N., Submarine Cables and the Oceans Connecting the World, UNEP-WCMC Biodiversity Series No. 31. ICPC/UNE-WCMC. (2009)

2.  Burnett, D., Beckman R., Davenport T., Submarine Cables The Handbook of Law and Policy, Martinus Nijhoff Publishers (Brill),( 2014)

3.  Submarine Cables and Deep Seabed Mining, Advancing Common Interests and Addressing UNCLOS “Due Regard” Obligations, Technical Study: No. 14 , ISA (2015)

4.  Oceans and the Law of the Sea, Report of the Secretary-General, A/70/7 (30 March 2015), # 53 and 54.

5.  De Juvigny, A., Davenport, T, Burnett, D., Freestone, D., Submarine Telecommunications Cables in the Sargasso Sea, 30 International Journal of Marine and Coastal Law Vol., No. 2, 371—378, (June 2015)

6.  World Ocean Assessment, http://www.worldoceanassessment.org/?page_id=14 , Chapter 19 [Submarine Cables and Pipelines] (2016)

7.  Handbook on Ocean Resources and Management, Routledge (Chapter 23-Submarine Cables-Carter L., Burnett, D.) (2016)

General References on Submarine Cables


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Submarine Cables and the UNCLOS - · PDF fileSubmarine Cables and the UNCLOS 2016 ABNJ Regional Leaders Program New York, NY 25 March 2016 Douglas R. Burnett International Cable Law