Claims in Disputed Maritime Areas: Resolving International Disputes Arising from Activities Relating to Submarine Cables in Disputed Maritime Areas

There exist over 430 submarine cables in operation around the world that carry over more than 97 per cent of transoceanic data between countries and continents.[2] These cables provide physical links between the continents that enable our digital world to function, and have been described by the United Nations as a ‘critical communications infrastructure’ that is ‘vitally important to the global economy and the national security of all states’.[3] From a solely domestic viewpoint, these cables face a plethora of legal requirements as one follows the cable from the beachhead in any given country to the ends of that country’s territorial sea and beyond. There are multiple legal requirements at the national, provincial and local government levels that can regulate such cables, which any cable will face or need to satisfy. Installing such a cable can require in each country at the outset seafloor lease agreements, environmental clearance certificates, heritage certificates for the onshore landing and the near offshore maritime landing to ensure cultural heritage is preserved, maritime permits, land-use permits, and building permits. The ongoing maintenance for existing cables runs a similar gauntlet and provides numerous grounds for potential liability with the law of the coastal state applying to cable landings and at least to the edge of the territorial sea. Cable damage claims are by their nature multi-jurisdictional and require a strategic approach to be taken by the parties involved and their lawyers, bearing in mind the various jurisdictions potentially involved.

Where things can get complicated, however, is beyond the state’s territorial sea in instances where the cable passes through maritime zones that are disputed. Owing to their international nature, submarine cables linking different countries and continents inevitably cross multiple maritime zones in which coastal states may have jurisdiction or sovereign rights. In disputed maritime areas, namely areas where one coastal state’s entitlement to a maritime zone overlaps with another coastal state’s entitlement to the same zone,[4] submarine cables and activities that arise from them may therefore become a source of potential dispute. The question then arises as to what one can do in the situation where a submarine cable passes through disputed waters.

This article focuses itself on these situations where a cable finds itself in disputed maritime areas. It will first provide an overview of submarine communication cables, and the legal regime that applies to them under public international law. It will then analyse the scenario where submarine cables cross through disputed maritime areas, and will set out where disputes that arise from such situations can be addressed.

Submarine communication cables – an overview

There are two main types of submarine cables: communication cables and power cables.[5] This chapter focuses on the former. In short, a submarine communication cable consists of ‘a set of six to 24 glass fibers, an electrical conductor, an internal steel strength member, and a protective sheath of marine grade polypropylene, which are constructed to withstand harsh environmental conditions for up to 25 years’.[6] In less technical terms, submarine cables are fibre optic cables no thicker than garden hoses, but that are built in a way that enables them to last for up to 25 years underwater, and to support the vast majority of international telecommunications worldwide.[7]

These cables are typically laid on or buried within the seabed. In practice, this is done in two stages. First, an ‘optimal cable route’ is determined through surveys which take into account landing sites, the seabed itself, the fishing routes, the cable and pipeline crossings, and boundaries with other coastal states.[8] Second, once the designated route is approved, cables are deployed by a trained crew on special, cable-laying vessels, which roll the cables out of holding tanks.[9] Depending on the route, the cable can either be buried beneath the seabed, or will be laid on the seabed itself (but usually only at depths of more than 1,500 metres, that is, a depth that enables less risk arising from human activities such as fishing or anchoring).[10]

The majority of countries now rely on submarine cables for their communication needs.[11] To date, the global cable network is composed of more than 430 cables,[12] amounting to more than 1.3 million kilometres of submarine communication cables, and carries over more than 97 per cent of transoceanic data between countries and continents.[13] There are no substitutes for these submarine communication cables. By way of example, were the network to disappear, the entire capacity of the Earth’s satellite network could handle only 7 per cent of the data produced by the United States.[14]

Financially, submarine cables are essential. They carry an excess of US$10 trillion a day of financial transfers,[15] and process some 15 million financial transactions daily.[16] The Society for Worldwide Interbank Financial Telecommunications (SWIFT) relies on submarine cables to share financial data to ‘more than 8,300 member financial institutions in 195 countries’,[17] and the US Clearing House Interbank Payment System processes over US$1 trillion a day to more than 22 countries.[18] Unsurprisingly, the staff director for management of the Federal Reserve has highlighted the importance of submarine cable networks: ‘when the communication networks go down, the financial sector does not grind to a halt, it snaps to a halt.’[19]

As the United Nations Oceans and the Law of the Sea Report of the Secretary-General dated 9 September 2020 underscores, the above numbers have only intensified as a result of the covid-19 pandemic.[20] With an increase in the world’s internet traffic of approximately 25 to 50 per cent, reliance on submarine cables is more important now than ever before:[21]

Reliance on submarine cables, which carry approximately 99 per cent of the world’s Internet traffic, intensified by approximately 25–50 per cent, as usage for communication, commerce, teleworking, telemedicine and tele-education expanded.

Functioning as a ‘backbone of the international telecommunications system’,[22] submarine cables are therefore essential to the critical global infrastructure and play a direct role in the global economy.[23]

The international legal regime applicable to submarine cables

By their very nature, submarine cables cross a number of maritime zones over which various forums’ international legal provisions may apply. In light of this, it is essential to understand the international legal regime applicable to submarine cables.

There are four primary legal instruments that set out the international regime for submarine cables: (1) the 1884 Convention for the Protection of Submarine Telegraph Cables (the 1884 Convention), (2) the 1958 Geneva Convention on the High Seas (now superseded), (3) the 1958 Convention on Continental Shelf (now superseded), and (4) the 1982 United Nations Convention on the Law of the Sea (UNCLOS).

The earliest international law convention on submarine cables is the 1884 Convention. It is a stand-alone convention that deals only with the protection of submarine telegraph cables, and has as its main goal that states adopt legislation that protects cables laying ‘outside territorial waters’.[24] Of relevance, Article II sets out that it is a ‘punishable offence’ to break or injure a submarine cable wilfully or by culpable negligence (with the caveat that this does not apply if this was done with the object of saving lives or a ship).[25] In Article XII, the signatories agree to implement national legislation to impose the penalties for violating the treaty.[26] The 1884 Convention presently has 36 state parties.[27]

More recently, maritime law has played a crucial role in the legal regime applicable to maritime cables. As the Geneva Convention on the High Seas and the Convention on the Continental Shelf of 1958[28] were both superseded[29] by the 1982 UN Convention on the Law of the Sea (UNCLOS), the focus in this article will be solely on the latter. One hundred and nineteen states signed the UNCLOS, and it presently has 168 Member States.[30] UNCLOS establishes legal regimes for the territorial seas, the exclusive economic zone (EEZ), the continental shelf, and the high seas. Each of these regimes provides states with rights and obligations relevant to the laying and maintenance of submarine cables in the different maritime areas.

Territorial seas

Starting first with the territorial seas, according to UNCLOS Article 2, a coastal State’s sovereignty will extend beyond its land territory and internal waters to an adjacent belt of sea, described as the ‘territorial sea’.[31] According to UNCLOS Article 3, territorial seas may not exceed 12 nautical miles from the coastal baseline.[32]

Within its territorial sea, a coastal state has rights and duties that are inherent in sovereignty. For example, UNCLOS Article 21(1)(c) sets out that the coastal State is allowed to adopt laws and measures for the ‘protection of cables and pipelines’, which may limit innocent passage of vessels within territorial seas.[33] Coastal states therefore have extensive authority to regulate ships engaged in laying operations.[34]

In light of the importance of submarine cables, countries have established detailed regulations for any cable system that seeks to land in a state or to transit in its territorial sea.[35] For example, Australia, New Zealand, Uruguay, Colombia and Denmark have modern domestic laws in their national waters that establish protected zones around international cables that land in these countries.[36] In practice, coastal states will usually require permits, licences and environmental conditions to be met before permission is given to deploy submarine cables in these maritime zones.[37]

The EEZ and the continental shelf

UNCLOS also creates a specific legal regime for the EEZ and the continental shelf, where coastal states will enjoy specific sovereign rights over the exploration and exploitation of natural resources, but other states will still have the right to navigate and the freedom to lay and maintain submarine cables.[38] The EEZ regime is set out in Part V of UNCLOS, and the continental shelf regime in Part VI of UNCLOS. As both maritime zones largely overlap, and as the rights set out in the EEZ regarding the seabed and subsoil are to be ‘exercised in accordance with Part VI on the continental shelf’,[39] the regimes for both the EEZ and the continental shelf will be addressed together in the below subsection.[40]

The EEZ regime is set out in Part V of UNCLOS, which recognised the rights of the coastal state to claim an EEZ up to 200 nautical miles from the territorial sea baseline,[41] that gives coastal states sovereign rights to the exploration and exploitation of resources of ‘the waters superjacent to the seabed and the seabed and subsoil’ (which includes both non-living resources such as oil and gas and living resources such as fisheries).[42] Article 56 of UNCLOS sets out that a state also has jurisdiction over (1) the establishment and use of artificial islands, installations and structures, (2) marine scientific research and (3) the protection and preservation of the marine environment.[43]

With regard to the continental shelf, the legal regime is set out in Part VI of UNCLOS, which states that a coastal state has sovereign rights for the purpose of exploring the continental shelf and exploiting its natural resources (i.e., only non-living resources),[44] which consist of ‘the mineral and other non-living resources of the seabed and subsoil, together with . . . organisms which either are immobile on or under the seabed or are unable to move except in constant physical contact with the seabed or the subsoil’.[45] These rights are exclusive, in the sense that if the coastal state does not explore the continental shelf or exploit its natural resources, no one may undertake these activities without the express consent of the coastal state.[46] The continental shelf extends over 200 nautical miles from the territorial sea baseline, and may (depending on qualifying geological criteria under UNCLOS) be recognised as extending beyond the 200 nautical miles boundary up to a maximum of 350 nautical miles (this is known as the extended continental shelf (ECS)).[47]

UNCLOS has therefore two distinct legal bases (Part V and Part VI of UNCLOS) for rights over the seabed within 200 nautical miles. Article 56(3) of UNCLOS resolves this issue and provides that the rights set out in the EEZ regarding the seabed and subsoil should be ‘exercised in accordance with Part VI on the continental shelf’.[48] For anything beyond 200 nautical miles, that is, in the ECS, the continental shelf regime applies solely.

Both the regime of the EEZ and of the continental shelf are very similar with regards to submarine cables. The rights and freedoms of submarine cables on the EEZ and the continental shelf are set out in Articles 58 and 79 UNCLOS, respectively – and as set out above, both regimes will apply simultaneously for rights over the seabed within 200 nautical miles. First, UNCLOS affirms that all states have the freedom to lay submarine cables in the EEZ (Article 58 of UNCLOS)[49] and the continental shelf (article 79(1) of UNCLOS),[50] and that coastal states ‘may not impede the laying or maintenance of such cables’.[51] The right of ‘all States’ to lay submarine cables should not be read restrictively, as in practice many submarine cables and pipelines are privately owned, and laid by private entities. The term therefore refers to the right of states and their nationals. Article 79 UNCLOS has been interpreted to mean that permits, taxes or fees imposed on international telecommunication cables by coastal states outside of their territories are not authorised under UNCLOS.[52] Laying submarine cables also includes the right to repair and maintain them, both for the EEZ (article 58 of UNCLOS)[53] and the continental shelf (implicitly accepted in Article 79(2) of UNCLOS).[54]

However, the right to lay cables in the EEZ or continental shelf is not unlimited. States or companies conducting cable operations in the EEZ or continental shelf must have due regard to the cables or pipelines already in position and not prejudice the repair of existing cables (Article 79(5) of UNCLOS),[55] as well as to the rights and duties of the coastal state in the EEZ and the continental shelf, to the extent that it overlaps with the EEZ.[56] In particular, it has been underlined that these ‘rights and duties’ correspond to rights over the exploration and exploitation of living and non-living resources, other economic resources such as the production of energy from the water, currents and winds, jurisdiction over artificial islands, installations and structures, marine scientific research, protection and preservation of the marine environment, etc.[57]

In addition, Article 79(4) of UNCLOS expressly sets out an exception to the freedom to lay submarine cables in the EEZ/continental shelf when these cables are used ‘in connection with the exploration of its continental shelf or exploitation of its resources or the operations of artificial islands, installations and structures under its jurisdiction’.[58] In such a situation, the coastal state will keep its jurisdiction over submarine cables. This is a direct consequence of a coastal state’s sovereign rights over the resources of the continental shelf or EEZ, and would appear to apply to submarine cables used to provide communications for oil and gas platforms and wind farms:[59]

The coastal state’s jurisdiction over submarine cables under Article 79(4) is a direct consequence of its sovereign rights over the resources of the continental shelf or EEZ as well as over other activities for the economic exploitation and exploration of the zone (such as the production of energy from water, currents and winds), and its jurisdiction over the establishment and use of artificial islands, installations, and structures. This provision would appear to apply to submarine communications and power cables used to provide communications for oil and gas platforms and wind farms.

Moreover, Article 58 UNCLOS sets out that States conducting cable operations in the EEZ (and the continental shelf to the extent it overlaps with the EEZ) ‘shall comply with the laws and regulations adopted by the coastal State in accordance with the provisions of this Convention and other rules of international law in so far as they are not incompatible with this part’.[60] The question here is to what extent a coastal state can regulate cable operations in the EEZ or continental shelf.[61] Under Article 79(2) of UNCLOS, coastal states are permitted to impose 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’.[62] It is important to note here that the criteria is for the measures to be ‘reasonable’. Applied to the case of submarine cables (rather than pipelines), a coastal state could, therefore, subject submarine cables to reasonable measures if this is for the exploration of the continental shelf, and for the exploitation of its natural resources (as the issue regarding pollution applies more to pipelines than submarine telecommunication cables).[63] It has been argued (although as will be discussed below this is not a universally shared view) that telecoms cables are not involved in the exploration or exploitation of natural resources.[64] Therefore, a coastal state would not, for example, have the basis to impede the maintenance of cable systems on the EEZ or continental shelf by imposing permits, delays, taxes, fees, custom duties or guard boat requirements.[65]

Article 79(3) of UNCLOS also states that ‘the delineation of the course for the laying of such pipelines on the continental shelf is subject to the consent of the coastal State’.[66] The wording of the clause implies that while the delineation of the course of pipelines is subject to the consent of the coastal state, the delineation of the course of submarine telecoms cables are not. However, a state could rely on the right to impose ‘reasonable measures’ for the exploration of the continental shelf and the exploitation of its natural resources as per Article 79(2) of UNCLOS as a legal basis to justify the delineation of the course for laying submarine cables.[67] Finally, although the coastal state therefore maintains some rights in the EEZ or continental shelf with regard to submarine cables, these remain strongly limited by Article 78(2) of UNCLOS, which highlights that ‘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.’

High seas

Finally, the UNCLOS sets out the legal regime for submarine cables in the high seas. Article 87(1)(c) of UNCLOS affirms the freedom of the high seas, which includes the freedom for all states (and their nationals)[68] to lay submarine cables, both on the continental shelf as seen above (subject to restrictions just discussed),[69] and beyond the continental shelf as per Article 112(1) UNCLOS.[70] This includes the possibilities of repairing existing cables.[71]

Disputed maritime areas and disputes arising out of activities related to submarine cables in these areas

Although maritime zones appear to be clearly delineated by the UNCLOS, the reality is that there can be overlapping claims to a maritime zone. These overlapping claims generally arise from the calculation of baselines from which the maritime zones are delineated, and the different approaches taken by states in doing so. Overlapping claims are problematic to the countries involved as it creates ambiguity as to which one between them has the right to exploit the area such as through royalties or licence fees for submarine cables traversing the area, and this ambiguity can prevent international investors from investing in the area.[72]

In the first instance, of course, states can negotiate a solution to their boundary dispute directly. International law provides some incentive for such a resolution as until the dispute is resolved, neither is to undertake activity in the area. Each claim of maritime boundary is legally valid, and each is therefore legally entitled to claim the rights of exploration and exploitation in the disputed area.[73] There exists a presumption in international law that in the absence of a ‘dividing line’, each of the affected states will be entitled to claim the relevant rights in the area in question.[74]

In such a situation, international law provides that the states involved are to agree an equitable solution. UNCLOS Articles 74(1) and 83(1) are identically phrased as follows:

The delimitation of the exclusive economic zone [or ‘the continental shelf’] between States with opposite or adjacent coasts shall be effected by agreement on the basis of international law, as referred to in Article 38 of the Statute of the International Court of Justice, in order to achieve an equitable solution.

In the interim, UNCLOS provides that neither state is to take any action that will prejudice the final delimitation. Articles 74(3) (for the EEZ) and 83(3) (for the continental shelf) of UNCLOS, are again identically worded in this regard:

Pending agreement as provided for in Paragraph 1, the states concerned, in a spirit of understanding and cooperation, shall make every effort to enter into provisional arrangements of a practical nature and, during this transitional period, not to jeopardize or hamper the reaching of the final agreement. Such arrangements shall be without prejudice to the final delimitation.[75]

What then of a forum for these disputes necessary to unlock the economic potential of these areas?

Forums for dispute resolution

The traditional forum to whom one can submit disputes over borders or between states is of course the International Court of Justice (ICJ),[76] and the ICJ has entertained disputes over maritime delimitation before,[77] primarily in relation to oil and gas exploration. It was the ICJ to which Greece addressed its dispute with Turkey concerning the determination of the continental shelf boundary in the disputed area of the Aegean Sea.[78]

While the ICJ remains an option, UNCLOS provides further options for signatory states. According to Article 287 of UNCLOS, a state is free to make a declaration indicating the means of settlement it chooses between the ITLOS, the ICJ, or an arbitral tribunal for general disputes concerning the interpretation or application of the Convention and that do not belong to a more specific category.[79] If the choices of the parties match, then the common choice will prevail.[80] If not, then an arbitral tribunal will be constituted in accordance with Annex VII of the UNCLOS. The Permanent Court of Arbitration at the Hague will usually be the institution that provides the arbitration services for these Annex VII arbitrations. In fact, the PCA has served in ‘all but one of the UNCLOS Annex VII arbitrations to date’.[81] Further, these procedures are compulsory, and parties shall submit the dispute to the court or tribunal having jurisdiction according to the UNCLOS provisions unless they are able to resolve their dispute peacefully.

Other, specific categories of disputes are expressly attributed to ITLOS. The first specific category concerns provisional measures pending the constitution of an arbitral tribunal to which a dispute is submitted (which provisional measures can therefore be decided by ITLOS).[82] This could apply, for example, in the context of disputes relating to submarine cables in disputed maritime areas when one state acts in a way which is seen to contradict the obligation of mutual restraint set out in Articles 74(3) and 83(3) of UNCLOS. A second specific category concerns the prompt release of vessels, which disputes must also be submitted to ITLOS unless otherwise agreed by the state parties within 10 days from the time of detention.[83] One can foresee such a potential situation arising, for example, where a cable-laying ship is seized by one of the disputing countries. A final type of dispute between states is set out in Article 288(2) of UNCLOS, which provides that the settlement mechanisms under UNCLOS can be extended to other conventions related to UNCLOS, for example other disputes relating to the law of the sea.[84]

For many states, compulsory jurisdiction as set out in UNCLOS was only acceptable if certain issues were excluded from it.[85] However, the possibility of making reservations was excluded since UNCLOS contains a general prohibition of reservations in Article 309 of UNCLOS: ‘No reservations or exceptions may be made to this Convention unless expressly permitted by other articles of the Convention.’[86] A compromise was reached by enabling some flexibility in the rules concerning the settlement of disputes, set out in Articles 297 and 298 of UNCLOS.[87] Article 298 UNCLOS allows state parties to exclude a limited number of categories of disputes from binding dispute settlement by a declaration made by the parties to UNCLOS.[88] These declarations may be made upon signature, ratification or accession to the UNCLOS or at any moment, and may be withdrawn at any moment.[89] They must be deposited with the Secretary General of the United Nations.[90] As set out in Article 298 of UNCLOS, the state need simply declare that ‘it does not accept any one or more of the procedures provided for’ with respect to specific categories of dispute.[91]

There are three categories of exclusions listed in Article 298 of UNCLOS, which must be ‘interpreted narrowly and uniformly’ because provided by the UNCLOS and not drafted by the state parties:[92] disputes relating to the interpretation of articles concerning, inter alia, sea boundary delimitations; disputes concerning military activities; and disputes where the Security Council exercises functions assigned to it by the UN Charter.[93] Most states, including, for example, China, made declarations using the whole range of exclusions.[94] In light of the rule of kompetenz-kompetenz, it is then a task for the selected tribunal to appreciate whether the subject matter of the dispute falls within the authorised exceptions, and therefore the scope of its own jurisdiction.[95] It is important to highlight that states will not be allowed to make exclusions that go beyond the scope set out in Article 298 UNCLOS. For example, Russia made a declaration excluding some matters from the compulsory settlement mechanism that went beyond the issues listed in Article 298 of UNCLOS, in particular disputes ‘concerning law enforcement activities in regard to the exercise of sovereign rights or jurisdiction’.[96] In the Arctic Sunrise dispute between the Netherlands and Russia, the Tribunal scrutinised this declaration and stated in its award that ‘Russia’s Declaration can only apply to an exception that is permitted under Article 298.’[97] Therefore, as far as the disputes concerning law enforcement activities went, the only limits to the Tribunal’s jurisdiction resulted in the limits set out in Article 297(2) and (3), contrary to Russia’s declaration.[98]

Article 297 of UNCLOS deals with disputes that may arise about the way a coastal state exercises its freedoms and rights.[99] Fortunately, Article 297(1) affirms the principle of the applicability of the compulsory procedures, in particular in regard to ‘the freedoms and rights of navigation, overflight, or the laying of submarine cables and pipelines’.[100] This article therefore makes expressly clear that disputes arising from the way a coastal state exercises its sovereign rights relating to the laying of submarine cables shall be subject to the compulsory settlement mechanism in UNCLOS. Article 297(1) thereby gives the highest level of protection to the laying and maintaining of submarine cables, as disputes relating to this subject matter will be subject to the mandatory requirements of the dispute provisions in UNCLOS:[101]

[I]n the context of disputes of competing uses in the EEZ, upon the continental shelf, or on the high seas, it is of special importance to recognize that the laying and maintaining of submarine cables enjoys the highest level of protection under the UNCLOS dispute resolution provisions where such disputes with coastal States are subject to the mandatory requirements of these provisions.

Maritime boundary disputes in these forums

Between 1969 and 2013, there were about 20 maritime boundary disputes adjudicated before an international forum. Ten were before the ICJ, one was before ITLOS, two were Annex VII cases and six proceeded before ad hoc arbitration panels. Of these cases, the ICJ has taken an average of five years and nine months to conclude, while the initial two UNCLOS Annex VII cases lasted between 26 and 43 months, respectively. The only boundary case to have come before ITLOS at that time took 27 months to conclude. Since 2014, there has been at least one additional case before the ICJ, and one before ITLOS.

While in all cases, there is the issue of delimiting the boundary, the more interesting disputes and those likely to address private actors most immediately, albeit indirectly, address the obligation of mutual restraint that each state has pursuant to Articles 74(3) and 83(3) of UNCLOS. To date, there have been three cases in which an international decision-making body has been called upon to adjudicate Articles 74(3) and 83(3). The first two were Guyana v. Surinam, which was an arbitration taking place under Annex VII. The second was Ivory Coast v. Ghana, which was heard by the Special Chamber of ITLOS in 2017, and the third was Somalia v. Kenya, which proceeded in the ICJ and was decided in October 2021. In each of these instances, the boundary was delimitated, and brought clarity to end the dispute.

As such, international law provides for several forums for resolving potential disputes in contested maritime areas, albeit the capacity to act in them has so far been limited to state actors. Under customary international law, rights accrue not to natural or juridical persons, but rather to their state of nationality, which can enforce alone the rights through the mechanism of diplomatic protection. A considerable body of authority supports the view that natural or juridical persons are not themselves the holder of rights under customary international law. As such, the default situation is that they may not invoke those rights against a given state unless specifically given those rights, as well as jurisdictional consent by a State to be made the subject of action. Nevertheless, these disputes have the ability to affect private commercial actors engaged in activity in a disputed zone.

Interim measures to resolving disputes relating to submarine cables in disputed maritime areas

Given that UNCLOS provides that neither state is to take any action that will prejudice the final delimitation pursuant to Articles 74(3) and 83(3) of UNCLOS, the same forums are available for interim measures to prevent unilateral activity in such disputed areas. As one can expect, the economic and political implications of delineating a line between two states involved are immense. For some countries, the seabed resources ‘could prove crucial to the well-being and political stability of coastal states’.[102] Moreover, maritime delimitation is a process that has been proven to be time-consuming.[103]

Accordingly, the pressure to take action before the resolution of the dispute can thus be immense. This pressure was demonstrated in the situation between Guyana and Surinam. In the year 2000, an oil rig and drill ship of Guyana concessionaires were ordered to leave and escorted from the area by the Surinamese navy. Guyana initiated arbitral proceedings on 24 February 2004, pursuant to Articles 286 and 287 and Annex VII of United Nations Convention on the Law of the Sea (UNCLOS), with a decision coming only in 2007. That decision found that both parties had breached the others’ rights under Articles 73(3) and 83(3) of UNCLOS for the actions they took prior to the final decision.[104]

Perhaps intending to avoid the same result where both parties would be found having violated the Articles 73(3) and 83(3) rights of the other as in Guyana v. Suriname, the parties in Ivory Coast v. Ghana took a different approach when their delimitation dispute crystallised in a dispute in 2014. Thereafter, Ghana launched arbitration proceedings against the Ivory Coast under Annex VII of UNCLOS in September 2014.[105] In February 2015, the Ivory Coast filed a request for provisional measures with the Special Chamber, seeking an order directing Ghana to ‘take all steps to suspend all oil exploration and exploitation operations under way in the disputed area’ pending delimitation of the maritime boundary. ITLOS issued its order on provisional measures in April 2015. It ordered that no new drilling should take place in the disputed area pending the decision of the Special Chamber on the maritime boundary. However, it rejected the Ivory Coast’s request that ongoing activities also be suspended, because it considered that such suspension would ‘entail the risk of considerable financial loss to Ghana and its concessionaires’.

Subsequent to ITLOS’s April 2015 provisional order, Ghana, which had issued two concessions in the area, wrote to its concessionaire, and invited it to take appropriate steps to allow Ghana to comply with its obligations. The subsequent cessation of activity was the subject of a force majeure claim between the owner of a deep water semi-submersible drilling.[106] Consequently, while the legal proceedings involve states, the repercussions inevitably flowed down to private actors. The case was finally decided in 2017, delimiting the maritime boundary and dismissing the Ivory Coast’s claims against Ghana for violating its Article 83(3) sovereign rights for its conduct in the interim, based at least in part on the discussions held between the parties to resolve the dispute and Ghana having complied with the provisional order. While no similar request for provisional relief was made in the more recent case involving Somalia and Kenya, the ICJ in that case held that activity in a disputed zone does not violate the other state’s sovereign rights, even if the area is ultimately allocated to the other.[107]

To date, the only jurisprudence over this issue arises in the context of oil and gas exploration. Whether a tribunal would similarly be persuaded to order provisional measures in the context of submarine communication cables, as there is less likelihood of physical damage to the seabed or subsoil of the area under dispute, has not as yet been the subject of review. Indeed, the distinction between activity that is manifestly prejudicial and irreparable and activity that is not originates from the order of the ICJ in the Aegean Sea Continental Shelf case of 1976 addressing Greece’s request for interim measures pursuant to Article 41 of the ICJ Statutes. The court rejected the request on the basis that exploratory activities conducted by Turkey are not likely to cause a permanent effect as would drilling and the establishment of installations.[108] The tribunal in Ivory Coast v. Ghana in its preliminary ruling similarly prevented Ghana from carrying out any further drilling activity but did not order it to cease less intrusive activity such as seismic surveying, although it ordered Ghana to take all steps necessary to ensure the information gleaned could not be used the detriment of Ivory Coast, suggesting to some that the less intrusive acts could form the basis for a violation of sovereignty albeit it not to the standard required for preliminary relief.[109] Thus, although submarine cable installations are generally considered less intrusive than other activities such as drilling and extraction, the activity, if carried out in disputed zones, may still be found violative of sovereign rights.

Conclusion

Submarine cables lie at the heart of our world’s international telecommunication systems and have become essential to the modern society and economy. Owing to their international nature, submarine cables inevitably pass through different international maritime zones, which at times may be disputed as between two states. In such event, a concessionaire of one of the states may find itself in the middle, and the only real solution is to resolve the underlying issue, that is, launch a process of delimitation to assess to whom the disputed maritime area belongs. In the interim, international law provides that neither state is to take any action that would prejudice the final delimitation. Fortunately, there exist forums for the resolution of the more intractable of such disputes, as well as jurisprudence, which is now lending some degree of certainty to these circumstances.


Notes

[1] Michael J Stepek is a partner at Winston & Strawn LLP and visiting scholar at the Center for Oceans and Coastal Law, University of Maine.

[2] United Nations, 75th session, 9 September 2020, ‘Oceans and the law of the Sea Report of the Secretary General’, paragraph 8, p. 3; 40th Edition of Subtel Forum’s Submarine Cable Almanac, 2021, pp. 16–17. Financial Times, 29 March 2021, ‘Facebook to build submarine cables linking US and Indonesia’, Mercedes Ruehl. See also Blog of the European Journal of International Law, 29 July 2020, ‘The Law of Maritime Neutrality and Submarine Cables’, James Kraska; Lawfare, 21 November 2017, ‘Cutting the Cord: The Legal Regime Protecting Undersea Cables’, Garrett Hinck; TeleGeography, Submarine Cable Frequently Asked Questions, last accessed on 22 March 2022; Catholic University Journal of Law and Technology, December 2015, Volume 24, Issue 1, ‘Submarine Cables, Cybersecurity and International Law: An Intersectional Analysis’, p. 22, Tara Davenpart.

[3] United Nations, General Assembly, 7 December 2010, 65/37 Oceans and the Law of the Sea, pp. 3 and 21. See also Catholic University Journal of Law and Technology, December 2015, Volume 24, Issue 1, Submarine Cables, Cybersecurity and International Law: An Intersectional Analysis, Tara Davenpart, as well as Lawfare, 21 November 2017, Cutting the Cord: The Legal Regime Protecting Undersea Cables, Garrett Hinck.

[4] UCL Journal of Law and Jurisprudence Vol. 5(1), 2016, Oil and Gas Development in Disputed Waters under UNCLOS, Constantinos Yiallourides.

[5] Catholic University Journal of Law and Technology, December 2015, Volume 24, Issue 1, ‘Submarine Cables, Cybersecurity and International Law: An Intersectional Analysis’, Tara Davenpart, p. 60.

[6] Catholic University Journal of Law and Technology, December 2015, Volume 24, Issue 1, ‘Submarine Cables, Cybersecurity and International Law: An Intersectional Analysis’, Tara Davenpart, at p. 62.

[7] Data Center Dynamics, 26 August 2021, ‘What is a submarine cable? Subsea fiber explained’, Dan Swinhoe. See also TeleGeography, Submarine Cable Frequently Asked Questions, last accessed on 22 March 2022.

[8] Subsea Cables – Installation Procedures and Methods, KINGFISHER INFO. SERV.- OFFSHORE RENEWABLE & CABLES AWARENESS (accessed in March 2022); Catholic University Journal of Law and Technology, December 2015, Volume 24, Issue 1, ‘Submarine Cables, Cybersecurity and International Law: An Intersectional Analysis’, Tara Davenpart, p. 68.

[9] Douglas Burnett et al., ‘Submarine cables in the sargasso sea: legal and environmental issues in areas beyond national jurisdiction’ 10 (2015), p. 11.

[10] Catholic University Journal of Law and Technology, December 2015, Volume 24, Issue 1, ‘Submarine Cables, Cybersecurity and International Law: An Intersectional Analysis’, Tara Davenpart, at p. 69. Douglas Burnett et al., ‘Submarine cables in the sargasso sea: legal and environmental issues in areas beyond national jurisdiction’ 10 (2015), pp. 10–11.

[11] Catholic University Journal of Law and Technology, December 2015, Volume 24, Issue 1, ‘Submarine Cables, Cybersecurity and International Law: An Intersectional Analysis’, Tara Davenpart, p. 63.

[12] 40th Edition of Subtel Forum’s Submarine Cable Almanac, 2021, pp. 16–17.

[13] TeleGeography, Submarine Cable Frequently Asked Questions, last accessed on 22 March 2022; United Nations, 75th session, 9 September 2020, Oceans and the law of the Sea Report of the Secretary General, Paragraph 8, p. 3.

[14] US Chamber of Commerce (2012) Statement of the US Chamber of Commerce on Hearing on the United Nations Law of the Sea Convention, p. 7.

[15] Catholic University Journal of Law and Technology, December 2015, Volume 24, Issue 1, ‘Submarine Cables, Cybersecurity and International Law: An Intersectional Analysis’, Tara Davenpart, at p. 63; Michael Sechrist, New Threats, Old Technology: Vulnerabilities In Undersea Communications Cable Network Management Systems 9 (Harv. Kennedy Sch., Belfer Ctr. for Sci. & Int’l Affs., Discussion Paper No. 2012-03, 2012); Policy Exchange, 2017, Undersea Cables, Indispensable, Insecure, Rishi Sunak MP, p. 5.

[16] Michael Sechrist, New Threats, Old Technology: Vulnerabilities In Undersea Communications Cable Network Management Systems 9 (Harv. Kennedy Sch., Belfer Ctr. for Sci. & Int’l Affs., Discussion Paper No. 2012-03, 2012), at p. 9.

[17] Catholic University Journal of Law and Technology, December 2015, Volume 24 Issue 1, ‘Submarine Cables, Cybersecurity and International Law: An Intersectional Analysis’, Tara Davenpart, at p. 63; Michael Sechrist, New Threats, Old Technology: Vulnerabilities In Undersea Communications Cable Network Management Systems 9 (Harv. Kennedy Sch., Belfer Ctr. for Sci. & Int’l Affs., Discussion Paper No. 2012-03, 2012) at p. 10.

[18] Michael Sechrist, New Threats, Old Technology: Vulnerabilities In Undersea Communications Cable Network Management Systems 9 (Harv. Kennedy Sch., Belfer Ctr. for Sci. & Int’l Affs., Discussion Paper No. 2012-03, 2012), p. 10.

[19] Martinus Nijhoff Publishers, 2014, Submarine Cables, The Handbook of Law and Policy, Introduction - Why Submarine Cables? Douglas Burnett, Tara Davenport and Robert Beckman, page 2, citing S Malphrus, Board of Governors of the Federal Reserve System, First Worldwide Cyber Security Summit, EastWest Institute, Dallas, Texas, 3–5 May 2010.

[20] United Nations, 75th session, 9 September 2020, Oceans and the law of the Sea Report of the Secretary General, Para. 8, p. 3.

[21] United Nations, 75th session, 9 September 2020, Oceans and the law of the Sea Report of the Secretary General, Para. 8 p. 3.

[22] United Nations General Assembly, A/70/74, 30 March 2015, Para. 55 p. 18.

[23] United Nations General Assembly, A/70/74, 30 March 2015, Para. 55 p. 18.

[24] Catholic University Journal of Law and Technology, December 2015, Volume 24 Issue 1, ‘Submarine Cables, Cybersecurity and International Law: An Intersectional Analysis’, Tara Davenpart, at p. 67; 1884 Convention, Article I.

[25] 1884 Convention, Article II.

[26] 1884 Convention, Article XII.

[27] https://cil.nus.edu.sg/databasecil/1884-convention-for-the-protection-of-submarine-telegraph-cables/

[28] The 1958 Geneva Convention on the High Seas and the 1958 Geneva Convention on the Continental Shelf.

[29] UNCLOS, Article 311(1).

[30] https://www.un.org/Depts/los/reference_files/chronological_lists_of_ratifications.htm. Please note that the United States has not ratified UNCLOS. However, President Reagan’s 1983 United States Ocean Policy Statement said that the US would follow the provisions of UNCLOS relating to ‘balance of interests relating to the traditional uses of the ocean’.

[31] UNCLOS, Article 2.

[32] UNCLOS, Article 3. See also International Submarine Cables and Biodiversity of Areas beyond National Jurisdiction, the Cloud Beneath the Sea, 2017, Douglas R Burnett and Lionel Carter, p. 14; Catholic University Journal of Law and Technology, December 2015, Volume 24 Issue 1, ‘Submarine Cables, Cybersecurity and International Law: An Intersectional Analysis’, Tara Davenpart, at p. 76.

[33] UNCLOS, Article 21(c). See also International Submarine Cables and Biodiversity of Areas beyond National Jurisdiction, the Cloud Beneath the Sea, 2017, Douglas R Burnett and Lionel Carter, p. 14.

[34] The Handbook of Law and Policy, Douglas R Burnett, Robert Beckman and Tara Davenport, p. 140.

[35] International Submarine Cables and Biodiversity of Areas beyond National Jurisdiction, the Cloud Beneath the Sea, 2017, Douglas R Burnett and Lionel Carter, p. 14.

[36] International Submarine Cables and Biodiversity of Areas beyond National Jurisdiction, the Cloud Beneath the Sea, 2017, Douglas R Burnett and Lionel Carter, p. 14.

[37] Catholic University Journal of Law and Technology, December 2015, Volume 24, Issue 1, ‘Submarine Cables, Cybersecurity and International Law: An Intersectional Analysis’, Tara Davenpart, p. 76.

[38] International Submarine Cables and Biodiversity of Areas beyond National Jurisdiction: The Cloud Beneath the Sea, 2017, Douglas R Burnett and Lionel Carter, p. 15.

[39] UNCLOS, Article 56(3).

[40] The relevant UNCLOS articles on the EEZ and the continental shelf are Articles 56, 58, 78 and 79.

[41] UNCLOS, Article 57.

[42] UNCLOS, Article 56. See also Catholic University Journal of Law and Technology, December 2015, Volume 24 Issue 1, ‘Submarine Cables, Cybersecurity and International Law: An Intersectional Analysis’, Tara Davenpart, p. 72.

[43] UNCLOS, Article 56. See also Catholic University Journal of Law and Technology, December 2015, Volume 24, Issue 1, ‘Submarine Cables, Cybersecurity and International Law: An Intersectional Analysis’, Tara Davenpart, p. 72.

[44] UNCLOS, Article 77(1).

[45] UNCLOS, Article 77(4).

[46] UNCLOS, Article 77(2).

[47] UNCLOS, Article 76.

[48] UNCLOS, Article 56(3). See also Catholic University Journal of Law and Technology, December 2015, Volume 24 Issue 1, ‘Submarine Cables, Cybersecurity and International Law: An Intersectional Analysis’, Tara Davenpart, at p. 72.

[49] UNCLOS, Article 58.

[50] UNCLOS, Article 79(1).

[51] UNCLOS, Article 79(2).

[52] International Submarine Cables and Biodiversity of Areas beyond National Jurisdiction: The Cloud Beneath the Sea, 2017, Douglas R Burnett and Lionel Carter, p. 16.

[53] UNCLOS, Article 58.

[54] UNCLOS, Article 79(2), referring to the ‘laying or maintenance’ of submarine cables.

[55] UNCLOS, Article 79(5).

[56] UNCLOS, Article 58(3).

[57] Catholic University Journal of Law and Technology, December 2015, Volume 24 Issue 1, ‘Submarine Cables, Cybersecurity and International Law: An Intersectional Analysis’, Tara Davenpart, at page 73.

[58] UNCLOS, Article 79(4).

[59] Catholic University Journal of Law and Technology, December 2015, Volume 24 Issue 1, ‘Submarine Cables, Cybersecurity and International Law: An Intersectional Analysis’, Tara Davenpart, p. 76 (citations omitted).

[60] UNCLOS, Article 58(3).

[61] Catholic University Journal of Law and Technology, December 2015, Volume 24 Issue 1, ‘Submarine Cables, Cybersecurity and International Law: An Intersectional Analysis’, Tara Davenpart, at p. 73.

[62] UNCLOS, Article 79(2).

[63] Catholic University Journal of Law and Technology, December 2015, Volume 24 Issue 1, ‘Submarine Cables, Cybersecurity and International Law: An Intersectional Analysis’, Tara Davenpart, at p. 73.

[64] International Submarine Cables and Biodiversity of Areas beyond National Jurisdiction: The Cloud Beneath the Sea, 2017, Douglas R Burnett and Lionel Carter, page 17. Please note that this position is not unanimous, as others have argued that as part of their right to impose ‘reasonable measures’ for the exploration and exploitation of the continental shelf, the coastal States may impose conditions for the delineation of the cable route, see ‘Submarine Cables, Cybersecurity and International Law: An Intersectional Analysis’, Tara Davenpart, at p. 74.

[65] International Submarine Cables and Biodiversity of Areas beyond National Jurisdiction: The Cloud Beneath the Sea, 2017, Douglas R Burnett and Lionel Carter, page 17.

[66] UNCLOS, Article 79(3).

[67] ‘Submarine Cables, Cybersecurity and International Law: An Intersectional Analysis’, Tara Davenpart, at p. 74.

[68] ‘Submarine Cables, Cybersecurity and International Law: An Intersectional Analysis’, Tara Davenpart, at p. 71.

[69] UNCLOS, Article 87.

[70] UNCLOS, Article 112(1).

[71] Article 112 (2) of UNCLOS states that Article 79 (5) applies to cables laid in the high seas. Article 79(5) expressly states: ‘possibilities of repairing existing cables or pipelines shall not be prejudiced.’

[72] See, e.g., Watson, ‘The Bangladesh/Myanmar Maritime Dispute: Lessons for Peaceful Resolution’, AMTI.CSIS.Org/Category/Indian-Ocean.

[73] UCL Journal of Law and Jurisprudence Vol 5(1), 2016, ‘Oil and Gas Developments in Disputed Waters under UNCLOS’, Constantinos Yiallourides, p. 64.

[74] UCL Journal of Law and Jurisprudence Vol 5(1), 2016, ‘Oil and Gas Developments in Disputed Waters under UNCLOS’, Constantinos Yiallourides, p. 64, citing Masahiro Miyoshi, ‘The Basic Concept of Joint Development of Hydrocarbon Resources on the Continental Shelf’ (1988) 3(1) IJECL 1, at p. 13.

[75] UNCLOS, Articles 74(3) and 83(3).

[76] Statutes of the International Court of Justice, at Article 36(1) ‘The jurisdiction of the Court comprises all cases which the parties refer to it and all matters specially provided for in the Charter of the United Nations or in treaties and conventions in force.’

[77] e.g., Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras) 8 October 2007; Maritime Delimitation in the Black Sea (Romania v. Ukraine), 3 February 2009.

[78] Aegean Sea Continental Shelf (Greece/Turkey) (Jurisdiction) [1978] ICJ Rep 3.

[79] UNCLOS, Article 286: ‘any dispute concerning the interpretation or application of this Convention’. See also China Oceans Law Review 2017, ‘Compulsory Dispute Settlement Methods under the UNCLOS: Scope and Limits under the Scrutiny of the Jurisprudence’, Genevieve Bastid Burdeau, p. 26.

[80] UNCLOS, Article 287(4).

[81] https://pca-cpa.org/en/services/arbitration-services/unclos.

[82] UNCLOS, Article 290(5). See also China Oceans Law Review 2017, ‘Compulsory Dispute Settlement Methods under the UNCLOS: Scope and Limits under the Scrutiny of the Jurisprudence’, Genevieve Bastid Burdeau, p. 26.

[83] UNCLOS, Article 292. See also China Oceans Law Review 2017, ‘Compulsory Dispute Settlement Methods under the UNCLOS: Scope and Limits under the Scrutiny of the Jurisprudence’, Genevieve Bastid Burdeau, p. 26.

[84] UNCLOS, Article 288(2).

[85] China Oceans Law Review 2017, ‘Compulsory Dispute Settlement Methods under the UNCLOS: Scope and Limits under the Scrutiny of the Jurisprudence’, Genevieve Bastid Burdeau, p. 27.

[86] UNCLOS, Article 309, China Oceans Law Review 2017, ‘Compulsory Dispute Settlement Methods under the UNCLOS: Scope and Limits under the Scrutiny of the Jurisprudence’, Genevieve Bastid Burdeau, p. 27.

[87] UNCLOS, Articles 297-298. See also China Oceans Law Review 2017, ‘Compulsory Dispute Settlement Methods under the UNCLOS: Scope and Limits under the Scrutiny of the Jurisprudence’, Genevieve Bastid Burdeau, p. 27.

[88] UNCLOS, Article 298. See also China Oceans Law Review 2017, ‘Compulsory Dispute Settlement Methods under the UNCLOS: Scope and Limits under the Scrutiny of the Jurisprudence’, Genevieve Bastid Burdeau, p. 29.

[89] For a list of the countries that have made declarations, see: https://www.un.org/Depts/los/convention_agreements/convention_declarations.htm.

[90] China Oceans Law Review 2017, ‘Compulsory Dispute Settlement Methods under the UNCLOS: Scope and Limits under the Scrutiny of the Jurisprudence’, Genevieve Bastid Burdeau, p. 30.

[91] UNCLOS, Article 298(1).

[92] UNCLOS, Article 298. See also China Oceans Law Review 2017, ‘Compulsory Dispute Settlement Methods under the UNCLOS: Scope and Limits under the Scrutiny of the Jurisprudence’, Genevieve Bastid Burdeau, p. 30.

[93] UNCLOS, Article 298. See also China Oceans Law Review 2017, ‘Compulsory Dispute Settlement Methods under the UNCLOS: Scope and Limits under the Scrutiny of the Jurisprudence’, Genevieve Bastid Burdeau, p. 29.

[94] China Oceans Law Review 2017, ‘Compulsory Dispute Settlement Methods under the UNCLOS: Scope and Limits under the Scrutiny of the Jurisprudence’, Genevieve Bastid Burdeau, p. 30.

[95] China Oceans Law Review 2017, ‘Compulsory Dispute Settlement Methods under the UNCLOS: Scope and Limits under the Scrutiny of the Jurisprudence’, Genevieve Bastid Burdeau, p. 30.

[96] China Oceans Law Review 2017, ‘Compulsory Dispute Settlement Methods under the UNCLOS: Scope and Limits under the Scrutiny of the Jurisprudence’, Genevieve Bastid Burdeau, at p. 31.

[97] Arctic Sunrise Award on Jurisdiction, 26 November 2014, Para. 72.

[98] China Oceans Law Review 2017, ‘Compulsory Dispute Settlement Methods under the UNCLOS: Scope and Limits under the Scrutiny of the Jurisprudence’, Genevieve Bastid Burdeau, p. 31.

[99] UNCLOS, Article 297.

[100] UNCLOS, Article 297(1). See also China Oceans Law Review 2017, ‘Compulsory Dispute Settlement Methods under the UNCLOS: Scope and Limits under the Scrutiny of the Jurisprudence’, Genevieve Bastid Burdeau, p. 32.

[101] International Submarine Cables and Biodiversity of Areas beyond National Jurisdiction: The Cloud Beneath the Sea, 2017, Douglas R Burnett and Lionel Carter, p. 23.

[102] UCL Journal of Law and Jurisprudence Vol 5(1), 2016, ‘Oil and Gas Developments in Disputed Waters under UNCLOS’, Constantinos Yiallourides, p. 65, citing David M Ong, ‘Joint Development of Common Offshore Oil and Gas Deposits: ‘Mere’ State Practice or Customary International Law?’ (1999) 93 (4) AJIL 771, 775.

[103] UCL Journal of Law and Jurisprudence Vol 5(1), 2016, ‘Oil and Gas Developments in Disputed Waters under UNCLOS’, Constantinos Yiallourides, at p. 65.

104 UCL Journal of Law and Jurisprudence Vol 5(1), 2016, ‘Oil and Gas Developments in Disputed Waters under UNCLOS’, Constantinos Yiallourides, at page 71, citing Guyana/Suriname Case (Arbitral Tribunal) (Award) (2007) at Para. 476.

[105] Subsequently, the Parties concluded a Special Agreement transferring their dispute to a Special Chamber of ITLOS, consisting of five judges, three of which were permanent judges of ITLOS.

[106] Seadrill Ghana Operations Ltd v. Tullow Ghana Ltd, 2018 WL 03231110 (2018).

[107] Ioannides & Yiallourides, ‘Maritime Delimitation in the Indian Ocean (Somalia v. Kenya): A Commentary (BICL Blog, 1 November 2021).

[108] Yiallourides, Oil and Gas Development in Disputed Waters under UNCLOS, at pp. 72–73 at https://ssm.com/abstratt+2786742

[109] id. at p. 77.

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