The Law: Current legal regime regulating the laying and protection of submarine cables and its implementation

1. The Law:Current legal regime regulating the laying and protection of submarine cables and its implementation Workshop on Submarine Cables for Ocean/Climate Monitoring and Disaster Warning:Science, Engineering, Business and Law8-9 September 2011, Rome Vladimir Jares Division for Ocean Affairs and the Law of the Sea (DOALOS) Office of Legal Affairs, United Nations

2. Outline • The Law: current legal regime for oceans and seas under the United Nations Convention on the Law of the Sea: • Regime of maritime zones • Breaking of or injury to submarine cables • General Assembly resolution

3. UNCLOS and its regime • The United Nations Convention on the Law of the Sea sets out the legal framework within which all activities in the oceans and seas must be carried out Legislative history: • 1958 Geneva Conventions on the High Seas, Continental Shelf and the Territorial Sea • The 1884 International Convention for the Protection of Submarine Cables, as amended by the Declaration on the Protection of Submarine Cables of 1 December 1886 and the Protocol on the Protection of Submarine Cables of 7 July 1887

4. Maritime zones: Territorial Sea • May extend up to 12 nautical miles from the baselines • The coastal State has sovereignty over the territorial sea • The coastal State has the right of to establish conditions for cables entering its territory or territorial sea • The coastal State may adopt laws and regulations relating to innocent passage in respect to the protection of cables and pipelines

5. Maritime zones: Contiguous Zone • May not extend beyond 24 nautical miles from the baselines • May be established for the prevention of infringement of customs, fiscal, immigration or sanitary laws and regulations of the Coastal State within its territory or territorial sea and for the punishment of such infringement • Not direct relevance for submarine cables

6. Maritime Zones: Archipelagic Waters • Waters enclosed by the archipelagic baselines, under the sovereignty of an archipelagic State • Existing submarine cables: • An archipelagic State shall respect existing submarine cables laid by other States and passing through its waters without making a landfall • It shall permit the maintenance and replacement of such cables upon receiving due notice of their location and the intention to repair or replace them

7. Cables and artificial islands • The coastal State has the right to establish its jurisdiction over cables constructed or 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.

8. Maritime Zones: Exclusive Economic Zone • A zone beyond and adjacent to the territorial sea, which shall not extend beyond 200 nautical miles from the baselines • All States, whether coastal or land-locked, enjoy the freedom of the laying of submarine cables, and other internationally lawful uses of the sea related to this freedom, such as those associated with the operation of submarine cables

9. Maritime Zones: Continental Shelf • Note: The rights of the coastal State over the continental shelf do not depend on occupation, effective or notional, or on any express proclamation • Extends up to 200 nautical miles and beyond, under specific circumstances • All States are entitled to lay submarine cables on the continental shelf

10. Maritime Zones: Continental Shelf • The coastal State has the right to take reasonable measures for the exploration of CS, the exploitation of its natural resources, otherwise it may not impede the laying or maintenance of such cables • When laying submarine cables, States shall have due regard to cables or pipelines already in position; possibilities of repairing existing cables shall not be prejudiced

11. Maritime Zones: Continental Shelf • UNCLOS preserves the right of the coastal State to establish conditions for cables or pipelines entering its territory or territorial sea, or its jurisdiction over cables and pipelines constructed or used in connection with the exploration of its continental shelf or exploitation of its resources or the operations of artificial islands, installations and structures under its jurisdiction.

12. Maritime Zones: High Seas • A Zone beyond the limits of national jurisdiction • All States are entitled to lay submarine cables on the bed of the high seas beyond the continental shelf • When laying submarine cables, States shall have due regard to cables or pipelines already in position; possibilities of repairing existing cables shall not be prejudiced.

13. The Law: Breaking or injury of a submarine cable or pipeline • Article 113 of UNCLOS Every State shall adopt the laws and regulations necessary to provide that the breaking or injury by a ship flying its flag or by a person subject to its jurisdiction of a submarine cable beneath the high seas done 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 injury of a submarine pipeline or high-voltage power cable, shall be a punishable offence. …

14. Breaking or injury of a submarine cable or pipeline • Article 114 of UNCLOS Every State shall adopt the laws and regulations necessary to provide that, if persons subject to its jurisdiction who are the owners of a submarine cable or pipeline beneath the high seas, in laying or repairing that cable or pipeline, cause a break in or injury to another cable or pipeline, they shall bear the cost of the repairs

15. Indemnity for loss incurred in avoiding injury to a submarine cable or pipeline • Article 115 of UNCLOS Every State shall adopt the laws and regulations necessary to ensure that the owners of ships who can prove that they have sacrificed an anchor, a net or any other fishing gear, in order to avoid injuring a submarine cable, shall be indemnified by the owner of the cable or pipeline, provided that the owner of the ship has taken all reasonable precautionary measures beforehand.

16. The Law: National Legislation • Expected to incorporate the general provisions of the Convention on sovereignty, sovereign rights and jurisdiction, including the regime for submarine cables • Examples of national legislation related to licensing, the laying of cables or obligations of owner of cables • Flag States required to implement the Convention in relation to the ships flying their flag

17. United Nations General Assembly General Assembly resolution on oceans and the law of the sea (A/RES/65/37A of 7 December 2010 • Preamble Recognizing that fibre optic submarine cables transmit most of the world’s data and communications and, hence, are vitally important to the global economy and the national security of all States, conscious that these cables are susceptible to intentional and accidental damage from shipping and other activities, noting that these matters have been brought to the attention of States at various workshops and seminars, and conscious of the need for States to adopt national laws and regulations to protect submarine cables and render their wilful damage or damage by culpable negligence punishable offences,

18. United Nations General Assembly General Assembly resolution on oceans and the law of the sea (A/RES/65/37A of 7 December 2010 • Operative part 121. Also calls upon States to take measures to protect fibre optic submarine cables and to fully address issues relating to these cables, in accordance with international law, as reflected in the Convention; encourages greater dialogue and cooperation among States and the relevant regional and global organizations to promote the security of such critical communications infrastructure, and in this regard notes the attention given to this matter in the Okinawa Declaration of the eighth Asia-Pacific Economic Cooperation ministerial meeting on the telecommunications and information industry, held in Okinawa, Japan, on 30 and 31 October 2010;

19. Conclusions Thank you for your kind attention! Division for Ocean Affairs and the Law of the Sea (DOALOS) Office of Legal Affairs, United Nations

20. Contact information • Division for Ocean Affairs and the Law of the Sea, Office of Legal AffairsRoom DC2-0450United NationsNew York, NY 10017, USA • www.un.org/Depts/los