Submarine cables, environmental monitoring and international law

 

Telecom marine-data cable development depends on a pragmatic, sensitive approach to address legal challenges.

 

Recent technological developments present the possibility of using undersea telecommunication cables for the dual purpose of gathering real-time data on the ocean’s temperature, salinity and water pressure for scientific research purposes while at the same time transmitting voice, data and Internet traffic. A new report published by ITU, the Intergovernmental Oceanographic Commission of the United Nations Educational, Scientific and Cultural Organization (UNESCO/IOC) and the World Meteorological Organization (WMO), entitled “Legal Considerations Arising from the Deployment, Operation, and Maintenance of Submarine Telecommunications Cables with Scientific Sensors”, explains how these activities have been considered separately under international and national laws, and highlights the legal challenges that this creates. The report was researched and written by Kent Bressie of Wiltshire & Grannis LLP.

Submarine cables that provide telecommunication connectivity and marine environmental monitoring are referred to in the report as telecom-marine data cables. Those two activities are subject to separate legal regimes under international law — regimes that did not necessarily anticipate that the two activities could be combined as the technology changed. Undersea telecommunication cables are granted unique rights and freedoms not accorded to any other activity in the marine environment. Marine data gathering, by contrast, has been subject to a long-running disagreement among countries about the proper treatment and the applicability of the extensive national restrictions permitted on marine scientific research (MSR) — a category of activity left undefined in the key treaty.

“The nascent debate about the appropriate legal-regulatory treatment of telecom-marine data cables—and indeed the desirability of such cables at all—has been polarizing, with opposing camps taking “all bad” or “all good” views. The “all-bad” view denies that there are opportunities for cable operators and scientists, based on an incorrect legal assumption that coastal States will or must regulate telecom-marine data cables as MSR and on a concern that deployments of such cables will serve to erode submarine cable rights and freedoms. The “all-good” view denies the legal-regulatory newness and complexities of telecom-marine data cables and fails to account for the underlying forty-year dispute over MSR”, explains Mr Bressie in the report.

The demand by scientists and policy-makers for greater volumes of improved data on the environment is strong and increasing, partly as a result of natural disasters such as the tsunami that hit Japan in 2011, while sensor technology used to gather the data is improving.

“The problem is that the legal regime for laying and maintaining cables is not fully compatible with that for marine scientific research”, explains Malcolm Johnson, Director of the ITU Telecommunication Standardization Bureau.

Marine zones

The United Nations Convention on the Law of the Sea (UNCLOS, 1982), distinguishes between different zones off the coastline of nation States. Classified in terms of their distance in nautical miles from a State’s territory or internal or archipelagic waters, these are:

• territorial sea (within 12 nautical miles);
• contiguous zone (within 24 nautical miles);
• exclusive economic zone (EEZ) (within 200 nautical miles);
• continental shelf (following the submerged prolongation of the coastal State’s land territory, not to exceed 200 nautical miles, although UNCLOS establishes a process for continental-shelf claims beyond 200 nautical miles — a process that is ongoing);
• high seas (outside the internal waters, archipelagic waters, territorial waters, and EEZs of coastal States);
• the Area (beyond the limits of national jurisdiction, including the seabed and ocean floor and subsoil thereof but not the water column).

The rights of a State vary according to the marine zone, and they include the right to control research or survey activities. The closer the zone to land, the stronger the State’s potential claim on that right. UNCLOS specifies the rights of innocent passage from ships of other States in the territorial waters of a particular individual State, but does not do so beyond those territorial waters. Freedom is greatest in the high seas and the Area, as no State exercises sovereignty there.

Unique rights for submarine cables

International law has given special freedoms and protection to submarine cables since the 19th century. It grants freedoms to lay, maintain, and repair submarine cables. These freedoms are not afforded to any other marine activities, but the law does not define submarine cables. A coastal State must not impose any restrictions on the installation or maintenance of submarine cables unless those submarine cables are used for natural resource exploration or exploitation. The law thus limits the ability of coastal States to regulate submarine cables. This legal freedom extends from the territorial waters right through to, and including, the high seas.

Coastal States are allowed to regulate three categories of marine data collection on the continental shelf or in their exclusive economic zone: marine scientific research; surveys; and exploration and exploitation of living and non-living resources. A controversial fourth category, known as operational oceanography, has also been proposed.

MSR ambiguously defined

Ambiguities in some definitions have prompted concerns that the rights of coastal States could be eroded, or conversely that such States could be unjustly exercising assumed rights. This could affect the development of telecom-marine data cables.

For instance, although the right of States and competent international organizations to conduct MSR is defined in the various marine zones, such research is not defined by UNCLOS because of disputes at the time that the convention was negotiated. A coastal State can require consent for the conduct of MSR on the continental shelf or in its exclusive economic zone (and should give consent so long as the purpose of the research is peaceful and increases scientific knowledge).

Any State also has the right to conduct marine scientific research in the water column in the Area, beyond the limits of any coastal State’s exclusive economic zone. But because MSR is ill-defined, this right may be disputed. Some States have argued that marine scientific research is distinct from operational oceanography, which broadly speaking they have defined as the measurement of temperature, pressure, current, salinity and wind in all maritime zones for the purposes of climate forecasts. Conversely, some States are likely to try and define environmental monitoring of this kind through telecom-marine data cables as marine scientific research.

At the same time, UNCLOS views surveys and hydrographic surveys (generally meaning the collection of marine data for the creation of navigational charts for the purposes of shipping safety) as separate from marine scientific research. Other surveys include those made by organizations laying telecommunication and similar cables to identify natural obstacles and hazards.

UNCLOS grants jurisdiction — depending on the marine zone — over marine data collected during the exploration and exploitation of living and non-living resources. For instance, a coastal State has sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources in the exclusive economic zone, but only sovereign rights for the purpose of exploring and exploiting the natural resources on the continental shelf.

Lessons learnt

There are plenty of precedents for legal disputes over marine data collection rights that indicate the kind of challenges that could be experienced by States or organizations intending to develop telecom-marine data cables. The Argo network of small, drifting oceanic probes deployed worldwide for climate, weather, oceanographic and fisheries research is a case in point. In 2008, the Executive Council of the Intergovernmental Oceanographic Commission (IOC) of UNESCO stated that an IOC Member State “must be informed in advance, through appropriate channels, of the deployment in the high seas of any float within the framework of the Argo programme… that may enter its EEZ”.

Responses to that statement have been polarized. On the one hand the United States, the United Kingdom and many European nations view the guideline as an infringement of the freedom of navigation and overflight on the high seas. On the other hand Peru, Argentina, Japan and other States insist that operation of the Argo network constitutes marine scientific research and is therefore subject to the consent of the coastal States concerned.

Emerging technologies or applications such as the telecom-marine data cables, which do not necessarily fit easily into any of the existing categories, may be particularly prone to suffer from such disagreements. There is widespread industry concern that telecom-marine data cables could be regulated as MSR by most coastal States, thereby potentially undermining the historic freedom accorded to undersea communication cables. Industry fears this could encourage greater regulation of submarine cables generally, which would create delays and add to costs.

Neither UNCLOS nor customary international law definitively classifies telecom-marine data cables as MSR. At the same time, neither UNCLOS nor customary international law supports the view that the submarine cable rights and freedoms extend to any and all functionality added or built into a cable. Some States would probably reject attempts to extend submarine cable freedoms to this additional data collection function.

“Because of these ambiguities in international law, the likely scenario to emerge if the telecom-marine data cable agenda develops is that different States will view the potential for telecom-marine data cables in different ways. Some will permit them with few restrictions, while others will treat them as marine scientific research. A mixed response of this nature would, however, open up a few opportunities,” says Mr Johnson.

Possible ways forward

There are a range of different scenarios, varying in difficulty. For example, it will be much easier to use the environmental monitoring capabilities of marine-data cables in the high seas, in the exclusive economic zones and in the continental shelf areas of States that recognize the concept of operational oceanography and exempt it from the rules governing marine scientific research. Where the opposite is the case, it will be harder and more time consuming to deploy such cables. Some States might cause difficulties by claiming that even adding sensors to the cables only in the high seas would taint the entire cable, rendering its activity marine scientific research all along its length.

As the report’s author says, “there is as yet no global agreement about the legal-regulatory treatment of telecom-marine data cables, nor is there likely to be anytime soon, given the intractable disputes over MSR. Consequently, there is likely to be variation and experimentation among coastal States and among potential telecom-marine data cables, as is typical when technological and commercial developments outpace existing legal-regulatory regimes.”

In the first instance, the problem is probably best managed by addressing the easier scenarios. International agreements and 标准 relating to telecom-marine data cables are unlikely. More generally, any effort to impose a globally uniform view on the use of sensors on submarine cables is likely to fail, according to the report.

The best approach for submarine cable operators and suppliers is probably to take each case on its own merits, and assess whether they have sufficient legal or regulatory flexibility and a business case for such deployment.