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Law and Policy for International Submarine Cables: An Asia-Pacific Perspective

Published online by Cambridge University Press:  24 February 2012

Yoshinobu TAKEI
Yoshinobu TAKEI*
Affiliation:
Utrecht University, the Netherlands
*
[email protected]
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Abstract

Whilst international submarine cables are essential to modern-day life, threats to these cables from competing ocean uses, such as fisheries, persist. Protection of submarine cables, and resolution of potential conflicts among various ocean uses, is needed now more than ever. This article examines and identifies weakness in the current legal regime for submarine cables, with a specific focus on the regulations concerning punishment for the breaking or damage of submarine cables and the integrated management of competing ocean uses. After discussing the legal regime, the article offers some proposals for reform, outlining various options for future action at the international level.

Type
Articles
Information
Asian Journal of International Law , Volume 2 , Issue 2 , July 2012 , pp. 205 - 233
Copyright
Copyright © Asian Journal of International Law 2012

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Footnotes

*

Research Associate, Netherlands Institute for the Law of the Sea (NILOS), School of Law, Utrecht University. This is a revised version of an article submitted to the Second Asian Society of International Law-National University of Singapore (NUS) Young Scholars Workshop, held at the NUS on 30 September–1 October 2010. The author wishes to express sincere gratitude to Professor Robert C. Beckman and other participants in the Workshop as well as to his colleagues at NILOS for their comments. Any possible error or omission remains the author's responsibility.

References

1. “List of Facilities ‘Vital to US Security’ Leaked” BBC (6 December 2010), online: 〈www.bbc.co.uk/news/world-us-canada-11923766〉. (The news article includes a link to the Wikileaks website containing a copy of the diplomatic cable that indicates various submarine cables landing sites in its list.)

2. Oceans and the Law of the Sea, GA Res. 65/37A, UN Doc. A/RES/65/37A (2010), preambular para. 22.

3. Tara DAVENPORT, “Submarine Cables: Problems in Law and Practice”, Centre for International Law, National University of Singapore, Working Paper, 2010. See also MCDOUGAL, Myres Smith and BURKE, William T., The Public Order of the Oceans: A Contemporary International Law of the Sea (New Haven, CT: Yale University Press, 1962) at 781Google Scholar.

4. United Nations Convention on the Law of the Sea, 10 December 1982, 1833 U.N.T.S. 397 (entered into force 16 November 1994) [UNCLOS].

5. Convention on the High Seas, 29 April 1958, 450 U.N.T.S. 82 (entered into force 30 September 1962), arts. 2 and 26−9 [HSC]; Convention on the Continental Shelf, 29 April 1958, 499 U.N.T.S. 312 (entered into force 10 June 1964), art. 4 [CSC].

6. Convention for the Protection of Submarine Telegraph Cables, 14 March 1884, (1901) 1 Australian Treaty Series (entered into force 1 May 1888) [1884 Convention]. As at the date of writing, there are now thirty-seven State Parties to the 1884 Convention. The list of parties is available online: French Ministry of Foreign and European Affairs 〈http://www.doc.diplomatie.fr〉. Note that the list includes thirty-eight country names, displaying Austria twice. The parties from the Asia-Pacific region include: Australia, Canada, Costa Rica, Fiji, Guatemala, Japan, New Zealand, the Russian Federation, El Salvador, and the United States of America.

7. International Regulations for Preventing Collisions at Sea, attached to Convention on the International Regulations for Preventing Collisions at Sea, 20 October 1972, 1050 U.N.T.S. 18 (entered into force 15 July 1977). The Regulations stipulate various rules governing, among other things, the operation of cable ships and other ships with a view to preventing collisions.

8. Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter of 29 December 1972, 7 November 1996, IMO Doc. LC/SM 1/6 (entered into force 24 March 2006), art. 1, para. 4.2.3 [1972 London Convention] (“Dumping” does not include “abandonment in the sea of matter (e.g., cables …) placed for a purpose other than the mere disposal thereof”). Such explicit reference to cables is absent in art. III(1) of the 1972 London Convention or art. 1(1)(5) of UNCLOS.

9. Davenport, supra note 3 at 5. Regarding the customary law status of the 1884 Convention, as stated at supra note 6, it has attracted only thirty-seven parties. In addition, when the International Law Commission (ILC) considered the codification of the existing law in its work on the law of the sea, some provisions of the 1884 Convention were not incorporated in its draft articles. See Robert BECKMAN, “Submarine Cables: A Critically Important but Neglected Area of the Law of the Sea”, 7th International Conference on Legal Regimes of Sea, Air, Space, and Antarctica, Indian Society of International Law, Conference Paper, 15−17 January 2010, New Delhi, at 2−3; Davenport, supra note 3 at 4. But see American Law Institute, ReStatement (Third) of Foreign Relations Law of the United States, vol. 1 (St. Paul, MN: American Law Institute Publishers, 1987), at Section 521, comment f (“the provisions of [the 1884 Convention] have been generally accepted as customary international law”); Eric WAGNER, “Submarine Cables and Protections Provided by the Law of the Sea” (1995) 19 Marine Policy 127 at 134.

10. On the history of various types of cables, see Lionel CARTER, Douglas BURNETT, Stephen DREW, Graham MARLE, Lonnie HAGADORN, Deborah BARTLETT-MCNEIL, and Nigel IRVINE, “Submarine Cables and the Oceans: Connecting the World”, UNEP-WCMC Biodiversity Series No. 31, ICPC/UNEP/UNEP-WCMC at 11−16; Rainer LAGONI, Legal Aspects of Submarine High Voltage Direct Current (HVDC) Cables (Hamburg: Lit, 1998) at 1−2.

11. See e.g. news release of the Japan Meteorological Agency, online: Japan Meteorological Agency 〈http://www.jma.go.jp/jma/kishou/jma-magazine/0811/index.html#a〉.

12. See e.g. “Iceland's Hot Rocks may be Power Source for UK” Times Online (13 May 2007), online: 〈www.timesonline.co.uk/tol/news/uk/article1782183.ece〉. In the foreseeable future, the usage of energy cables is expected to increase because of the so-called “smart grid” to convey energy from offshore renewable energy plants. See e.g. Memorandum of Cooperation Between Okinawa and Hawaii on Clean Energy Development and Implementation, signed by the Ministry of Economy, Trade, and Industry (METI) of Japan, U.S. Department of Energy, Okinawa Prefecture, and the State of Hawaii on 17 June 2010, online: METI 〈www.meti.go.jp/english/press/data/20100617_02.html〉.

13. Exceptionally, Article 113 refers to the breaking or damage of “a submarine cable”, on the one hand, and the breaking or damage of “a submarine pipeline and high-voltage power cable”, on the other.

14. See also Douglas R. BURNETT, “International Law Considerations for Owners and Operators of Cabled and Buoy Observatories” (2006) 31 IEEE Journal of Oceanic Engineering 230 at 230, 232; Lagoni, supra note 10 at 11; McDougal and Burke, supra note 3 at 782; Satya N. NANDAN and Shabtai ROSENNE, eds., United Nations Convention on the Law of the Sea 1982: A Commentary, vol. III (The Hague: Martinus Nijhoff Publishers, 1995) at 270. See also Articles Concerning the Law of the Sea, adopted at the Eighth Session of the International Law Commission in 1956, Commentary on art. 27, para. 4 [ILC Articles on the Law of the Sea].

15. UNCLOS, supra note 4, art. 81.

16. Carter et al., supra note 10 at 33.

17. See e.g. Law No. 6 of 8 August 1996 Regarding Indonesian Waters (Indonesia), which refers to “submarine telecommunication cable” in art. 9 and to “sea cable” in general in art. 22(2), both in the context of archipelagic waters.

18. International Seabed Authority (ISA), Recommendations for the Guidance of the Contractors for the Assessment of the Possible Environmental Impacts Arising from Exploration for Polymetallic Nodules in the Area, 13 February 2002, ISA Doc. ISBA/7/LTC/1/Rev.1 (2002); UN Food and Agriculture Organization, International Guidelines for the Management of Deep-sea Fisheries in the High Seas, adopted 29 August 2008 (Rome: FAO, 2009).

19. UNCLOS, supra note 4, art. 2. The right of the coastal state to establish conditions for cables entering its territorial sea referred to in art. 79(4) attests to the extensive authority the coastal state has over cables in areas under its sovereignty.

20. UNCLOS, supra note 4, arts. 17 and 21. On existing cables in archipelagic waters, see art. 51(2).

21. It should be noted that there exist provisions on artificial islands, installations, and structures separately from those on submarine cables in UNCLOS, and no cross-reference exists, suggesting that submarine cables are not included in the former category. See Lagoni, supra note 10 at 24. The 2001 UNESCO Underwater Cultural Heritage Convention, however, uses the terms differently. UNESCO Convention on the Protection of Underwater Cultural Heritage, 2 November 2001, (2002) 48 Law of the Sea Bulletin 29 (entered into force 2 January 2009), art. 1(1)(c). This article, located after art. 1(1)(b), which states that submarine cables are not underwater cultural heritage for the purpose of the Convention, refers to “installations other than pipelines and cables”, implying that submarine cables are part of the wider category of installations. Note that there was an argument to assimilate cables to ships or bridges in the context of laws of war. Colombos examined this theory and concluded that “there appears to be no need for ‘ship’ or ‘bridge’ theories”. C. John COLOMBOS, The International Law of the Sea, 6th rev. ed. (London: Longman, 1967) at 539Google Scholar.

22. On the coastal state regulatory competence beyond the territorial sea, see Stuart KAYE, “International Measures to Protect Oil Platforms, Pipelines, and Submarine Cables from Attack” (2007) 31 Tulane Maritime Law Journal 377 at 401.

23. UNCLOS, supra note 4, art. 56(3). See also Davenport, supra note 3 at 14.

24. UNCLOS, supra note 4, art. 58(1). In the EEZ, as well as on the continental shelf and the high seas, the right to lay submarine cables is stipulated as the right of states, not of private cable owners. Lagoni argues that these provisions are not directly applicable to cable owners and that such owners carry out cable-related activities on the basis of domestic law. Lagoni, supra note 10 at 13, 15, and 18. But see Burnett, supra note 14 at 232.

25. Art. 112(2) provides that art. 79(5) also applies to cables on the bed of the high seas beyond the continental shelf.

26. UNCLOS, supra note 4, art. 79(1). In the light of other provisions of art. 79, Smits observes that “the freedom to lay submarine cables on the continental shelf applies to transit cables only”. Jan M. SMITS, Legal Aspects of Implementing International Telecommunication Links: Institutions, Regulations and Instruments (Dordrecht: Martinus Nijhoff Publishers, 1991) at 97.

27. See e.g. UNCLOS, supra note 4, arts. 58(1) and 79(2). See also Beckman, supra note 9 at 6; Davenport, supra note 3 at 15; Lagoni, supra note 10 at 18; Umberto LEANZA, “Marine Scientific Research and the Right to Lay Submarine Cables and Pipelines: Differences in Regime”, in Norman, A., GUTIÉRREZ, MARTÍNEZ, ed., Serving the Rule of International Maritime Law: Essays in Honour of Professor David Joseph Attard (London: Routledge, 2010), 129 at 131Google Scholar.

28. Beckman, supra note 9 at 8−9; Lagoni, supra note 10 at 18; Leanza, supra note 27 at 131.

29. UNCLOS, supra note 4, art. 79(2). On the drafting history, see McDougal and Burke, supra note 3 at 704−6. Beckman argues that such measures would include adopting laws and regulations on cable route surveys. Beckman, supra note 9 at 9−10. Davenport refers to some examples of regulations not related to sovereign rights to explore and exploit natural resources. Davenport, supra note 3 at 18, note 101 and its accompanying text. Lagoni argues that the sovereign rights of the coastal state for the purpose of exploring and exploiting the natural resources of the continental shelf shall prevail over the right to lay or to maintain a submarine cable; and if a submarine cable already in position prevents the exploitation of natural resources, the coastal state may even require the removal of the cable into another position. Lagoni, supra note 10 at 19; contra Douglas R. BURNETT, “The Legal Status of Out-of-Service Submarine Cables” (2004) 18 Maritime Studies 22.

30. UNCLOS, supra note 4, art. 79(2). This reference to pollution is new in UNCLOS. Compare with HSC, supra note 5, art. 26(2); CSC, supra note 5, art. 4.

31. United Nations, Oceans and the Law of the Sea, Report of the Secretary-General, UN Doc. A/59/62, 4 March 2004, para. 234; Burnett, supra note 29; Davenport, supra note 3 at 11, note 59 and its accompanying text. However, energy cables might cause pollution by discharging electricity in the case of an accident, while telecommunication cables appear to be less likely to cause such pollution. In addition, electromagnetic effects of power cables have been pointed out in the Report of the UN Secretary-General, UN Doc. A/59/62, para. 269. On the term “pollution of the marine environment”, see UNCLOS, supra note 4, art. 1(1)(4). Depending on the degree of expected impacts of cables, the requirement of environmental impact assessments in art. 206 may come into play. In view of the minimal disturbance to the sea bed, Davenport argues that “States may wish to consider avoiding extensive [environmental impact assessment] requirements so as to avoid undue delay in the laying and repair of cables”. Davenport, supra note 3 at 12.

32. Beckman, supra note 9 at 6; Davenport, supra note 3 at 16. But see Lagoni, supra note 10 at 20 (whether or not the coastal state may take reasonable measures for the prevention, reduction, and control of any environmental effects from submarine cables on its continental shelf is an open question and, if pollution or similar environmental effects can be expected from a submarine high-voltage direct current cable, a corresponding power of the coastal state can be assumed by analogy to the power to prevent pollution from pipelines).

33. UNCLOS, supra note 4, art. 56(1)(b)(iii). See also arts. 192 and 194. Davenport, while commenting that the establishment of marine protected areas beyond the territorial sea is “arguably allowed under Article 194(5)”, observes that “there is no reason why cables and marine protected areas are mutually exclusive”. Davenport, supra note 3 at 22.

34. UNCLOS, supra note 4, art. 211(5).

35. See Daniel OWEN, “Interactions Between Management of a Water Column Marine Protected Area in the High Seas of the OSPAR Maritime Area and the Exercise of Sovereign Rights Regarding Subjacent Outer Continental Shelf: A Report for WWF Germany”, February 2010, online: WWF North-East Atlantic Programme, 〈www.ngo.grida.no/wwfneap/Publication/Submissions/OSPAR2010/WWF_WG_Charlie2_Report.pdf〉, at 34 (pointing to the threat posed by operational or accidental pollution from vessels laying the cable or maintaining it). As noted earlier, the burying of cables is likely to impact the benthic ecosystems more significantly. Davenport, supra note 3 at 11.

36. UNCLOS, supra note 4, art. 208(1). See Owen, supra note 35 at 28−9 and 35 (discussing the content of the category “sea-bed activities” and whether cable laying on the continental shelf is “subject to” the coastal state's jurisdiction). In this respect, it has been suggested that even abandoning a cable does not fall within the definition of pollution. Smits, supra note 26 at 106−7.

37. Note that there is a difference in the wording of art. 208(3) (“no less effective than”) and art. 211(5) (“conforming to and giving effect to”) regarding the rules of reference. Furthermore, in the case of art. 208, both global and regional rules are mentioned as minimum standards. See also Owen, supra note 35 at 35−6.

38. See Beckman, supra note 9 at 7; Davenport, supra note 3 at 16−17; International Law Association, “Preliminary Report, Committee on Legal Issues of the Outer Continental Shelf, New Delhi Conference (2002)”, 15 January 2002, at 17; Owen, supra note 35 at 32.

39. At the UN Sea-Bed Committee, there were proposals suggesting the need for coastal state consent on the route of cables, including the Chinese proposal at the 1973 session of the Sea-Bed Committee. UN Doc. A/AC.138/SC.II/L.34, s. 3, para. 4. Subsequent proposals and drafts did not refer to such requirements. See Satya N. NANDAN and Shabtai ROSENNE, eds., United Nations Convention on the Law of the Sea 1982: A Commentary, vol. II (Dordrecht: Martinus Nijhoff Publishers, 1993) at 911−15.

40. UNCLOS, supra note 4, art. 79(4). But see Beckman, supra note 9 at 7 (arguing that an interpretation that art. 79(4) gives coastal states a right to impose additional conditions on such cables “does not seem logical”); Davenport, supra note 3 at 17 (arguing that additional conditions “would only apply to the part of the cable located in the territorial sea”). See also Owen, supra note 35 at 33. Coastal states also have jurisdiction over cables constructed or used in connection with resource development or the operations of artificial islands, installations, and structures under their jurisdiction; UNCLOS, supra note 4, art. 79(4). It seems that cables used to send electricity from offshore windmills are covered by this expression.

41. UNCLOS, supra note 4, art. 79(5).

42. Smits, supra note 26 at 107.

43. In fact, Smits argues that although UNCLOS allows coastal states to set conditions for the landing of submarine cables in their territory, few states have adopted legislation for this purpose; ibid., at 108.

44. See ILC Articles on the Law of the Sea, supra note 14, Commentary on Article 70 (“in order to avoid unjustified interference with the exploitation of the natural resources of the seabed and subsoil, [the coastal State] may impose conditions concerning the route to be followed”). See also Edward Duncan BROWN, “The Significance of a Possible EC EEZ for the Law Relating to Artificial Islands, Installations, and Structures, and to Cables and Pipelines, in the Exclusive Economic Zone” (1992) 23 Ocean Development and International Law 115 at 137; Scott COFFEN-SMOUT and Glen HERBERT, “Submarine Cables: A Challenge for Ocean Management” (2000) 24 Marine Policy 441 at 443−4; Davenport, supra note 3 at 19; McDougal and Burke, supra note 3 at 705−6.

45. Exclusive Economic Zone and Continental Shelf Act, adopted at the Third Session of the Standing Committee of the Ninth National People's Congress, 26 June 1998, art. 11 (“The laying of submarine cables and pipelines must be authorized by the competent authorities of the People's Republic of China”). See also Regulations on Management of Laying Submarine Cables and Pipelines, adopted on 20 January 1989, art. 4(3) (“Those activities [i.e. the laying of submarine cables and pipelines and their route investigations and surveys as well as other activities concerned by foreign companies, enterprises, and other economic entities or individuals] that would be conducted on the continental shelf of the People's Republic of China should be notified of [sic: notified to] the Competent Authority in advance, and the determined routes for the submarine cables and pipelines should be approved by the Competent Authority.”)

46. The Territorial Waters, Continental Shelf, Exclusive Economic Zone and other Maritime Zones Act, 1976, Act No. 80 of 28 May 1976, s. 6(7) (“Without prejudice to the provisions of sub-section (2) and subject to any measures that may be necessary for protecting the interests of India, the Central Government may not impede the laying or maintenance of submarine cables or pipelines on the continental shelf by foreign States: Provided that the consent of the Central Government shall be necessary for the delineation of the course for the laying of such cables or pipelines”.).

47. Exclusive Economic Zone Act, 1984, Act No. 311 (“An Act pertaining to the exclusive economic zone and certain aspects of the continental shelf of Malaysia and to provide for the regulations of activities in the zone and on the continental shelf and for matters connected therewith”), s. 22(1).

48. Territorial Waters and Maritime Zones Act, 1976 (22 December 1976), ss. 5(6) and 6(6).

49. Federal Law, on the Continental Shelf of the Russian Federation, adopted by the State Duma on 25 October 1995, arts. 6(20) and 22.

50. Canada also requires a licence for international submarine cables (both for those landing in Canada (i.e. a terminating cable licence) and for those connecting between places outside Canada but transiting through Canada (i.e. a through cable licence)). Telecommunications Act (S.C. 1993, c. 38), 23 June 1993, current to 30 November 2010, s. 17; International Submarine Cable Licences Regulations (SOR/98-488, 1 October 1998), current to 30 November 2010. However, as the term “Canada” is not clarified in the Act or the Regulations, it is unclear from the text of the legislation whether the licence requirement applies to cables on Canada's continental shelf which do not enter the territorial sea of Canada. On the Canadian legislation relating to cable laying, see Coffen-Smout and Herbert, supra note 44 at 444−5. For national legislation, see also Barbara KWIATKOWSKA, The 200 Mile Exclusive Economic Zone in the New Law of the Sea (Dordrecht: Martinus Nijhoff Publishers, 1989) at 240, note 66; Lagoni, supra note 10 at 25ff.

51. Kwiatkowska, supra note 50 at 217. See also Hendrik ACKER and Stephen HODGSON, “European Commission, Legal Aspects of Maritime Spatial Planning, Framework Service Contract, No. FISH/2006/09 - LOT2, Final Report to DG Maritime Affairs & Fisheries” at 55, para. 300; Kaye, supra note 22 at 399; Lagoni, supra note 10 at 7, 18, and 20−2; Leanza, supra note 27 at 131.

52. UNCLOS, supra note 4, arts. 56(2) and 58(3). In addition, it should be noted that art. 300 provides for good faith and abuse of rights. Also note that art. 59 provides for the basis for the resolution of conflicts regarding the attribution of rights and jurisdiction in the EEZ.

53. Ibid., art. 78(2). See also ibid., art. 194(4).

54. See Coffen-Smout and Herbert, supra note 44 at 445, 447−8, who advocate the concept of a corridor for all future submarine cables across the Scotian shelf off Nova Scotia, as proposed by the fishing industry, and who propose reconsideration by cable companies of demanding the industry-standard minimum separation between cables of 500 metres or greater to avoid inadvertent snags during cable repairs.

55. Art. 115 does not refer to any geographical limitation but, considering the location of this article in Part VII (High Seas), it is reasonable to assume that this article is concerned with the high seas. This assumption is supported by the fact that this article, like arts. 113 and 114, is applied to the EEZ by virtue of art. 58(2).

56. UNCLOS, supra note 4, art. 87(1).

57. Ibid., art. 87(2). For elaboration of this concept, see Edward Duncan BROWN, The International Law of the Sea, vol. I (Aldershot: Dartmouth, 1994) at 316−17; Lagoni, supra note 10 at 14−15.

58. UNCLOS, supra note 4, art. 112(1).

59. Nandan and Rosenne, eds., supra note 14 at 264. See also Smits, supra note 26 at 96.

60. UNCLOS, supra note 4, art. 112(2). The other paragraphs of art. 79 do not apply to cables on the sea bed beyond the continental shelf.

61. Ibid., art. 297(1)(a).

62. Cable companies are not entitled to the dispute settlement procedures of UNCLOS, except perhaps for the prompt release procedures for their ships and crew. See also Davenport, supra note 3 at 22 (commenting that “[a] possible solution for cable companies is for the flag State of the cable laying or repair vessel to challenge” coastal state regulations). It is interesting to note that control over cable companies and interests served by their cables are factors to consider in determining the legality of conduct by belligerents under the law of naval warfare. See Colombos, supra note 21 at 537−8.

63. Note that the coastal state may establish safety zones around artificial islands, installations, and structures under art. 60, but no reference is given to safety zones around submarine cables in art. 58 or art. 79.

64. Cf. Kaye, supra note 22 at 398 and 422−3 (who considers discussions on the issue of safety zones at the ILC, observing that it is likely that states are still reluctant over fears of harm to freedom of navigation, and that “[a]t present, coastal-State jurisdiction based on environmental protection is not applicable to protect submarine cables … Revision of this situation by empowering a coastal State would seem to be logical”). On cable protection zones, see Davenport, supra note 3 at 38; Stuart KAYE, “The Protection of Platforms, Pipelines and Submarine Cables Under Australian and New Zealand Law” in Natalie KLEIN, Joanna MOSSOP, and Donald R. ROTHWELL, eds., Maritime Security: International Law and Policy Perspectives from Australia and New Zealand (London: Routledge, 2010), 186 at 200−1.

65. Art. 114 requires states to legislate to ensure that the cost of repair for a cable broken or damaged by a person in the course of maintenance to a nearby cable, is borne by the person who caused the damage. Art. 115 requires states to legislate to ensure that ship owners are indemnified for anchors, nets, or other fishing gear sacrificed to avoid injuring a submarine cable.

66. Art. 113 reads as follows: Every State shall adopt the laws and regulations necessary to provide that the breaking or damage by a ship flying its flag or by a person subject to its jurisdiction of a submarine cable beneath the high seas done wilfully or through culpable negligence, in such a manner as to be liable to interrupt or obstruct telegraphic or telephonic communications, and similarly the breaking or damage of a submarine pipeline or high-voltage power cable, shall be a punishable offence. This provision shall apply also to conduct calculated or likely to result in such breaking or damage. However, it shall not apply to any break or damage 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 break or damage.

67. See e.g. Wagner, supra note 9 at 136. Cf. HSC, supra note 5, art. 27.

68. But see Nandan and Rosenne, eds., supra note 14 at 270. On an evolutionary interpretation, see Section IV, infra.

69. See Beckman, supra note 9 at 14; Davenport, supra note 3 at 37. See also Wagner, supra note 9 at 134. This may cast doubt on whether this provision may be regarded as reflecting customary international law, despite the fact that a similar provision already appears in the HSC. Note that, in the preamble of the HSC, its States Parties recognize that the 1958 Geneva Conference adopted the provisions of the HSC “as generally declaratory of established principles of international law”. HSC, supra note 5.

70. Coffen-Smout and Herbert, supra note 44 at 443−4; Davenport, supra note 3 at 37; Wagner, supra note 9 at 134−5. See also Lagoni, supra note 10 at 51−2.

71. E.g. American Law Institute, supra note 9 at ss. 402 and 404; Ian BROWNLIE, Principles of Public International Law, 7th ed. (New York: Oxford University Press, 2008) at 300−7Google Scholar.

72. ILC Articles on the Law of the Sea, supra note 14, Commentary on art. 35, para. 2. Note that art. 94(7) of UNCLOS provides for co-operation between the flag state and the other state whose nationals, ships, or installations were involved or damaged. This duty concerns incidents of navigation qualified by such terms as “serious damage to ships or installations of another State or to the marine environment” and appears not to include damage to submarine cables.

73. See e.g. New Zealand's Public Act 1996 (NZ), Act No. 22 of 1996 [1996 New Zealand Act], ss. 4, 11, and 27; United States Code, Title 47, ss. 21 and 33. But see Australia's Telecommunications Act 1997 (Cth), Schedule 3A, Clauses 2 and 36−8 [Australian Telecommunications Act 1997, Schedule 3A].

74. See e.g. Australia's Submarine Cables and Pipelines Protection Act 1963 (Cth), s. 7 [1963 Australian Act]; 1996 New Zealand Act, ss. 4 and 11; United States Code, Title 47, ss. 21 and 33.

75. Davenport notes that “Requiring cables to be registered under the nationality of the owners like vessels may not be feasible because cables are usually owned by a consortium of national telecommunications carriers … and it would be difficult to determine which should be the country of registry” (emphasis in original); Davenport, supra note 3 at 22, note 120.

76. Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation, 10 March 1988, 1678 U.N.T.S. 222 (entered into force 1 March 1992) [1988 SUA Convention]. Parties shall establish jurisdiction over the offence committed against or on board a ship flying its flag, in its territory or territorial sea, or by a person who is its national; see art. 6(1).

77. Ibid., art. 6(4).

78. See NELSON, L.Dolliver, M., “Submarine Cables and Pipelines” in René-Jean DUPUY and Daniel eds., A Handbook on the New Law of the Sea (Dordrecht: Martinus Nijhoff Publishers, 1991), 977 at 982Google Scholar.

79. 1884 Convention, supra note 6, art. VIII.

80. See e.g. the legislation of Australia, New Zealand, and the United States, supra, note 73.

81. See e.g. Davenport, supra note 3 at 35, note 203 and its accompanying text, as well as at 38; McDougal and Burke, supra note 3 at 847; Nelson, supra note 78 at 982; Kaye, supra note 22 at 418−19; Lagoni, supra note 10 at 51; Daniel Patrick O'CONNELL, The International Law of the Sea, vol. II (Oxford: Clarendon Press, 1984) at 820 and 823. The Harvard Research on International Law also adopts a cautious attitude on this issue; 29 American Journal of International Law (1935), Supplement, at 569−72.

82. United Nations Conference on the Law of the Sea, Geneva, 24 February−27 April 1958, Official Records, vol. IV, at 88, online: United Nations Diplomatic Conferences 〈http://untreaty.un.org/cod/diplomaticconferences/lawofthesea-1958/2nd_Cttee_vol_IV_e.html〉. The ILC Commentary does not appear to indicate this intention, although it clearly shows that the general wording in the Draft Article 62 is not meant to require states to take legislative measures with regard to any person, but only require them to take such measures with regard to their own nationals. See ILC Articles on the Law of the Sea, supra note 14, Commentary on Article 62.

83. See, for example, RYNGAERT, Cedric, Jurisdiction in International Law (New York: Oxford University Press, 2008) at 109−110CrossRefGoogle Scholar.

84. Minutes of the Standing Committee on Judicial Affairs, House of Councillors, the National Diet of Japan, 21 May 1968, at 11−12 (where the government explains that whoever commits the crime of cable breaking or damage, wherever in the world, may be tried in Japan).

85. Bustamante Code, 13 February 1928, art. 308 (cited in 29 American Journal of International Law (1935), Supplement, at 588).

86. 29 American Journal of International Law (1935), Supplement, at 478−9 and 570. But, as stated at supra note 81, the Harvard Research eventually adopts a cautious approach to this issue.

87. UNCLOS, supra note 4, art. 110.

88. Ibid., art. 105.

89. Ibid., art. 101(a)(ii). See also Robert BECKMAN and Tara DAVENPORT, “Workshop Report”, Workshop on Submarine Cables and Law of the Sea, 14−15 December 2009, Singapore, at 27, note 19 and its accompanying text; Mick P. GREEN and Douglas R. BURNETT, “Security of International Submarine Cable Infrastructure: Time to Rethink?” in Myron H. NORDQUIST, Rüdiger WOLFROM, John Norton MOORE, and Ronán LONG, eds., Legal Challenges in Maritime Security (Leiden: Martinus Nijhoff Publishers, 2008), 557 at 578. Note that, while Beckman in principle supports this interpretation, he refers to the potential hesitation of many governments to adopt such an interpretation in practice; Beckman, supra note 9 at 15−16. See also Davenport, supra note 3 at 40.

90. See ILC Articles on the Law of the Sea, supra note 14, Commentary on Article 39, para. 4. Even if this interpretation is supported in the context of an area beyond national jurisdiction on the high seas, it is not entirely clear whether this particular provision is applicable to the EEZ by virtue of art. 58(2), for the essential element of this interpretation is that the act is committed against property “in a place outside the jurisdiction of any State”.

91. UNCLOS, supra note 4, preambular para. 3.

92. Most notably, Agenda 21: The United Nations Programme of Action from Rio, United Nations Conference on Environment and Development, UN Doc. A/CONF.151/26 (Vol. II) (1992), Chapter 17.

93. For a description of such an incident in Southeast Asian waters, see Green and Burnett, supra note 89 at 559−63. Destruction may occur during both peacetime and armed conflicts. It is submitted that different rules apply during armed conflicts since additional rules in the laws of war are applicable, as illustrated by, inter alia, the San Remo Manual on International Law Applicable to Armed Conflicts at Sea, adopted by the International Institute of Humanitarian Law on 12 June 1994, online: 〈www.icrc.org/ihl.nsf/FULL/560?OpenDocument〉. In addition, some treaties are made inapplicable to conduct by belligerents. See e.g. 1884 Convention, supra note 6, art. XV. See also Great Britain's declaration made upon signature of the 1884 Convention.

94. See Carter et al., supra note 10 at 38−48.

95. See also Malaysia's Continental Shelf Act 1966, Act No. 57 of 28 July 1966, as amended by Act No. 83 of 1972, s. 6(1)(j). It is noted that the regulatory measures dealt with in this section concern cables landing on the coastal states, rather than transit cables, because of the geographical location of Australia and New Zealand.

96. The amending Act was the Telecommunications and Other Legislation Amendment (Protection of Submarine Cables and Other Measures) Act 2005 (Cth), No. 104 of 2005.

97. Australian Communications and Media Authority [ACMA], “Submarine Telecommunications Cables” (2 February 2011), online: ACMA 〈www.acma.gov.au/WEB/STANDARD/pc=PC_100223〉.

98. ACMA, “Report on the Operation of the Submarine Cable Protection Regime: A Report on Five Years’ Operation of Schedule 3A of the Telecommunications Act 1997, the Submarine Cable Protection Regime” (September 2010), online: ACMA 〈www.acma.gov.au/webwr/_assets/main/lib311258/acma_submarine_cables_report.pdf〉, at 8, note 15.

99. The ten protected areas were already covered by the Submarine Cables and Pipelines Protection Order 1992 (NZ) as nine protected areas and one restricted area.

100. Australian Telecommunications Act 1997, Schedule 3A, supra note 73, clause 4. Clause 2 defines the term “Australian waters”. The zone is established for a cable or cables of “national significance” (clause 18). On the width of the zones, see clause 9.

101. See 1996 New Zealand Act, supra note 73, s. 12(1).

102. Australian Telecommunications Act 1997, Schedule 3A, supra note 73, clause 2.

103. Note that the existing declarations on protection zones have a provision on the application of the declaration (“This Declaration applies to the extent that it is consistent with Australia's jurisdiction under international law”). ACMA considers that this provision has the effect of qualifying the application of the administrative orders made under Schedule 3A. ACMA, supra note 98 at 23. If future declarations extending protection zones to the high seas have the same saving clause, then there will be no inconsistency with the international law of the sea.

104. Australian Telecommunications Act 1997, Schedule 3A, supra note 73, clause 10.

105. Ibid., clause 11.

106. Ibid., clause 40.

107. 1996 New Zealand Act, supra note 73, s. 13(1).

108. Ibid., s. 4(b)−(c). The term “high seas” is defined as all parts of the sea not included in the territorial sea or the internal waters (s. 2).

109. Australian Telecommunications Act 1997, Schedule 3A, supra note 73, clauses 36−8.

110. 1963 Australian Act, supra note 74, s. 7. Kaye considers that the relevant provision of the 1963 Act “closely reflects the requirements for States under Article 113 of the [UNCLOS]”; Kaye, supra note 64, at 198.

111. 1996 New Zealand Act, supra note 73, s. 11.

112. Ibid., s. 27.

113. Australian Telecommunications Act 1997, Schedule 3A, supra note 73, clause 84.

114. Ibid., clauses 20−1.

115. Ibid., clauses 71−2.

116. Memorandum of Understanding, Australian Communications and Media Authority, Commonwealth of Australia Department of Defence and Australian Defence Force, 22 December 2008, online: ACMA 〈www.acma.gov.au/webwr/_assets/main/lib100668/acma_defence_mou_submarine_cpz.pdf〉.

117. Ibid., ss. 6−7.

118. Ibid., s. 9.

119. ACMA, supra note 98 at 26. The report was presented to the Minister for Broadband, Communications and the Digital Economy in September 2010 and it was subsequently tabled in Parliament on 18 November 2010. See ACMA, “Review of Submarine Cable Regulation”, online: ACMA 〈www.acma.gov.au/WEB/STANDARD/pc=PC_311993〉.

120. ACMA, supra note 98 at 22−3. Comments submitted to ACMA's Review on this point mainly relate to (1) non-protection zone installation permits in Australian waters, and (2) installation permits for transit cables in the EEZ. While the former concern may necessitate a careful legal analysis as shown in the previous section, the latter concern appears to be largely misplaced as Schedule 3A defines “submarine cable” in s. 2(1) as laid for purposes that include connecting a place in Australia with a place outside Australia.

121. See Beckman and Davenport, supra note 89 at 16.

122. The term “areas beyond national jurisdiction” connotes both the water column of the high seas and the Area. As the issue of cables on the outer continental shelf was dealt with in the previous sections, this section focuses on cables beyond the limit of the continental shelf.

123. UNCLOS, supra note 4, art. 157(1)−(2). See also Davenport, supra note 3 at 24. Cf. Coffen-Smout and Herbert, supra note 44 at 444 and 448 (commenting that the ISA “has a mandate to coordinate and harmonize activities in the Area beyond national jurisdiction with other uses of the seabed. … [I]t is suggested that the [ISA] be mandated by the UN General Assembly to assume a regulatory function with regard to the routing of cables and their maintenance in the Area”, and suggesting the development of a “Submarine Cable Industry Code” by the ISA).

124. UNCLOS, supra note 4, art. 145. The limitation on the ISA's competence is created by the definition of “activities in the Area” in art. 1(1)(3) of UNCLOS and the definition of “resources” in art. 133 of UNCLOS.

125. Note that art. 145(a) refers to “harmful effects of such activities as drilling, dredging, excavation, disposal of waste, construction and operation or maintenance of installations, pipelines and other devices related to such activities”.

126. Notably, UNCLOS, supra note 4, art. 87.

127. See ibid., art. 136.

128. See ibid., art. 86 (“The provisions of [Part VII] apply to all parts of the sea that are not included in the exclusive economic zone, in the territorial sea or in the internal waters of a State, or in the archipelagic waters of an archipelagic State”).

129. Ibid., art. 137(1). Such a provision is absent in Part VII, including art. 89, of UNCLOS.

130. Of course, this does not mean that the laying of submarine cables in the Area is prohibited. See e.g. Alex G. OUDE ELFERINK, “The Regime of the Area: Delineating the Scope of Application of the Common Heritage Principle and Freedom of the High Seas” (2007) 22 International Journal of Marine and Coastal Law 143 at 155 (“The prohibition on appropriation is not absolute, and does not exclude activities that are explicitly permitted under the Convention”).

131. UNCLOS, supra note 4, arts. 87(2) and 147(1) and (3).

132. Brown, supra note 57 at 316−17.

133. ISA, Request for Observer Status in Accordance with Rule 82 , Paragraph 1(e), of the Rules of Procedure of the Assembly on Behalf of the International Cable Protection Committee: Note by the Secretariat, 3 March 2010, ISA Doc. ISBA/16/A/INF/1 (2010), Annex.

134. UN-Oceans, online: 〈www.oceansatlas.org/www.un-oceans.org/Index.htm〉.

135. Davenport argues that while the IMO would not be suitable as an overall international agency responsible for submarine cables, the International Telecommunications Union (ITU) may be the most appropriate international agency and efforts should be made by UN Member States to encourage the ITU to take a more active role; Davenport, supra note 3 at 41.

136. Summary Record, Meeting of the OSPAR Commission (OSPAR), Bergen, 20−24 September 2010, OSPAR 10/23/1-E, para. 12.3.

137. It is not impossible to revise UNCLOS. However, given the complex nature of the balance struck at the Third United Nations Conference on the Law of the Sea, it is not realistic to consider that states would agree to revise UNCLOS only to address the protection of submarine cables.

138. Participation in a review conference on a treaty is not necessarily reserved only for the parties to it. A good example is the Review Conference on the UN Fish Stocks Agreement. See Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, 4 August 1995, 2167 U.N.T.S. 88 (entered into force 11 December 2001), art. 36.

139. But see Kaye, supra note 22 at 396. An evolutionary interpretation of a treaty may mitigate this deficiency. See The Netherlands (PTT) and the Post Office (London) v. Nedlloyd, 17 January 1977, District Court of Rotterdam, the Netherlands, translated and reproduced in 74 International Law Reports (Cambridge: Cambridge University Press, 1988), at 215−16. This judgment was cited by the arbitral tribunal in the Iron Rhine Railway case as supporting an evolutionary interpretation. See Arbitration Regarding the Iron Rhine (“Ijzeren Rijn”) Railway between the Kingdom of Belgium and the Kingdom of the Netherlands, Award of the Arbitral Tribunal, 24 May 2005, online: Permanent Court of Arbitration 〈www.pca-cpa.org/upload/files/BE-NL%20Award%20corrected%20200905.pdf〉, at para. 80.

140. 1884 Convention, supra note 6, art. XV. On this issue, see, for example, San Remo Manual on International Law Applicable to Armed Conflicts at Sea, supra note 93, para. 37. Colombos argues that, on the question of the content of the rules of international law governing the treatment of cables in time of war, “we are met with the difficulty that there do not appear to be any which are clearly ascertainable”; Colombos, supra note 21 at 535.

141. International Regulations for Preventing Collisions at Sea, 20 October 1972, 1050 U.N.T.S. 18 (entered into force 15 July 1977).

142. See e.g. Davenport, supra note 3 at 8 and 18. Davenport also proposes a review of IMO regulations concerning the securing of anchors to protect submarine cables; see at 34.

143. International Convention for the Safety of Life at Sea, 1 November 1974, 1184 U.N.T.S. 278 (entered into force 25 May 1980). For discussions on the designation of areas to be avoided under the International Convention for the Safety of Life at Sea, see Owen, supra note 35 at 36.

144. While this article discusses this issue as part of the revision of existing treaties, amending the SUA Convention or its Protocol with a view to including the breaking or damage of submarine cables as one of the offences stipulated in the Convention or Protocol would, as a matter of formality, probably take the form of adopting a new instrument as in the case of the 2005 Protocol to the 1988 SUA Protocol: Protocol of 2005 to the Protocol for the Suppression of Unlawful Acts Against the Safety of Fixed Platforms Located on the Continental Shelf, adopted by the IMO International Conference on the Revision of the SUA Treaties, 1 November 2005, IMO Doc. LEG/CONF.15/22.

145. Note that UNCLOS recognizes that State Parties may conclude additional treaties for its implementation. It even allows State Parties to conclude a treaty modifying or suspending the operation of its provisions in accordance with the procedures stipulated therein; see UNCLOS, supra note 4, art. 311.

146. Cf. Kaye, supra note 22 at 403.

147. Ibid., at 419−20. The 1988 SUA Protocol and the Protocol thereto may be applicable to high-voltage power cables connected to platforms; see Protocol for the Suppression of Unlawful Acts Against the Safety of Fixed Platforms Located on the Continental Shelf, 10 March 1988, 1678 U.N.T.S. 304 (entered into force 1 March 1992), art. 1(3).

148. Cf. Kaye, supra note 22 at 422.

149. Davenport, supra note 3 at 39.

150. On this issue, Davenport comments that “States are unlikely to extend rights to board and rights to arrest under [UNCLOS] to vessels engaging in damage to submarine cables”, and proposes joint or co-ordinated patrols in areas where submarine cables have been laid so as to prevent any attacks; Davenport, supra note 3 at 41.

151. See also Beckman, supra note 9 at 14.

152. Davenport refers to the mutual obligations of coastal states and cable companies to take “due regard” when exercising their respective rights and observes that “cable companies must consult with coastal States on route selection and must notify (but not be required to seek consent from) coastal States on their laying and repair activities and coastal States must similarly keep cable companies informed on other activities that may impact cable operations”; Davenport, supra note 3 at 20−1.

153. GA Res. 65/37A, supra note 2, preambular para. 22 and operative para. 121.

154. Large-Scale Pelagic Drift-net Fishing and its Impact on the Living Marine Resources of the World's Oceans and Seas, GA Res. 44/225, UN Doc. A/RES/44/225 (1989); Large-Scale Pelagic Drift-net Fishing and its Impact on the Living Marine Resources of the World's Oceans and Seas, GA Res. 46/215, UN Doc. A/RES/46/215 (1991).

155. Sustainable Fisheries, Including Through the 1995 Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, and Related Instruments, GA Res. 61/105, UN Doc. A/RES/61/105 (2006) (paras. 80−91); Sustainable Fisheries, Including Through the 1995 Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, and Related Instruments, GA Res. 64/72, UN Doc. A/RES/64/72 (2009), paras. 112−30.

156. Report of the Outcomes of the Submarine Cable Information Sharing Workshop, Report of the Security and Prosperity Steering Group, Asia-Pacific Economic Cooperation, APEC Doc. 2009/TEL40/SPSG/010 (2009).

157. “Okinawa Declaration: ICT as an Engine for New Socio-economic Growth”, 2010 APEC Telecommunications and Information Industry Ministerial Meeting (TELMIN 8), Okinawa, Japan, 30−31 October 2010, para. 26. For the Statement in the previous session of the Ministerial Meeting, see “Bangkok Declaration: Digital Prosperity: Turning Challenges into Achievement”, adopted at the 2008 APEC Ministerial Meeting on the Telecommunications and Information Industry (TELMIN 7), Bangkok, Thailand, 23−25 April 2008, paras. 16 and 20.

158. “APEC TEL Strategic Action Plan: 2010−2015”, 2010 APEC Telecommunications and Information Industry Ministerial Meeting (TELMIN 8), 30−31 October 2010, at 5.