The Importance of UNCLOS to the U.S. Cable Industry
May 8, 2006
Excerpts from a speech presented by Douglas R. Burnett on April 12, 2006, at a forum in the U.S. Senate, which was hosted by the Center for Ocean Law and Policy of the University of Virginia Law School.
The United Nations Law of the Sea Convention (UNCLOS), in effect since 1994, is the most recent major development in international law governing the oceans. Referred to as the Constitution for the oceans, 149 nations have acceded to the convention. UNCLOS is of critical importance to the U.S. cable industry. However, although the U.S. was an active participant in the talks that led to UNCLOS, the treaty has yet to be ratified by the Senate.
The preamble of UNCLOS states, in part:
Recognizing the desirability of establishing through this Convention, with due regard to the sovereignty of all States, a legal order for the seas and oceans which will facilitate international communication ...
Nowhere is this premise more applicable than to international communication carried by fiber optic cables. Fiber optic technology offers today’s most robust, reliable and secure capability to absorb the exponentially increasing international communications growth fueled by the Internet. However, without UNCLOS, U.S. telecommunications companies will be hurt in the planning, development, maintenance and protection of undersea cable networks.
The 29 international cables currently landing in nine U.S. coastal states1 are critical infrastructure to the U.S. economy. Because the diameter of each of these cables is approximately that of a garden hose, their impact on the seabed is indeed minimal. However, while their footprint on the vastness of the ocean seabed is benign and virtually unremarkable, their impact on the U.S. is huge, since they carry 70 percent of all of the country’s international telecommunications traffic – including data transfer and video.
If you eliminate Canada, 90 percent of the United States’ international traffic is carried on these cables.
The disproportionate importance of these cables to the nation’s communications infrastructure can be seen by the fact that – if all of the cables were suddenly cut and we had to rely instead on satellite technology – using every single communications satellite in the sky would restore only 7 percent of U.S. traffic. This fact underscores the incredible capacity of modern fiber optic submarine cables. By any standard, they constitute critical infrastructure to both the U.S. – and the world.
UNCLOS: Charting the Course for Industry Growth
By its very nature, this infrastructure depends upon international cooperation and law. The promise of continued advances in international communications hinges on a global standard that will provide a compass whereby nations and private companies can steer a course that allows international communications networks to be seamlessly planned, built and operated.
UNCLOS provides this modern legal compass. Without UNCLOS, telecommunications companies are at a disadvantage in the planning, development, maintenance and protection of the world’s undersea cable networks. As the key to the growing international telecommunications system, UNCLOS unlocks the door to the fullest participation and leadership possible by U.S. telecommunications companies.
At present for the U.S., the operative international treaty for international cables is the 1884 International Convention for Protection of Submarine Cables. This venerable treaty was designed for the protection of international telegraph cables. However, while most of its features are included in UNCLOS, the real improvements provided by UNCLOS are essential for continuing the steady progress made in international communications in the past 122 years since the 1884 treaty entered into force.
UNCLOS is vital to the growth and protection of modern telecommunications business. For example, under the 1884 treaty, nations are required to provide criminal and civil sanctions for negligent or intentional actions which cause injury to a submarine telegraph cable. Unfortunately, under this treaty, the cable owner must wait until the damage is done before sanctions are triggered. Under UNCLOS, conduct which is likely to result in injury can also be sanctioned and a cable owner also has a remedy to prevent the injury to critical infrastructure in the first place. When one considers the more than $1 million average cost of a cable repair – and the potential disruption a cable break can cause to vital economic and strategic interests – it is easy to see why U.S. cable owners want UNCLOS now!
The 1884 treaty is limited to telegraph cables. UNCLOS provides and expands the protections accorded telegraph cables to all international cables, regardless of use. The following are just four examples of the expanded protections afforded by UNCLOS:
1) Power Cables In addition to fiber optic telecommunications cables, power cables are protected under UNCLOS. The Juan de Fuca cable, an international electrical cable which will bring power from Canada to Washington state in 2007, is an example of this new international cable use close to home.2 Plans have also been made to lay a submarine power cable from Nova Scotia to New York, as the U.S. needs Canadian energy.
2) Scientific Research Cables UNCLOS benefits are not just commercial. The new Neptune cable system, included in the President’s budget announced early in 2006 through funding of the National Science Foundation, is another example of a cable use recognized by UNCLOS that is not included in the 1884 treaty. When completed in two years (along with a segment now under construction by Canada), this international marine scientific research cable system will form the world’s most advanced undersea network of scientific observatories, including 24/7 monitoring sites off the west coasts of Canada and the U.S. This international cable system will yield new insights into the environment beneath the seas – ranging from forecasting of volcanic and seismic events to maximizing the benefits of living marine resources and protecting the marine environment.
3) Military Cables U.S. military cables, with sensors vital to national defense and homeland security, would depend on UNCLOS to allow their placement on the high seas. No other treaty provides this international right and customary law is often murky.
4) Multipurpose Cables With current technology, single cables often serve multiple uses. The Ocean Fiber system, a domestic submarine cable system linking Florida and Texas, will connect 25 of the largest offshore production platforms owned by five energy companies – enabling them to monitor and operate these platforms continuously from remote control centers ashore, impervious to hurricanes. The same cable system will provide a secure and alternative telecommunications infrastructure to the public, largely unaffected by storms or other threats to land facilities. It will also be equipped to connect with an undersea sensor network designed to improve homeland security far out at sea.
Undersea cables for all of these uses would benefit from UNCLOS. Fundamentally, the ability to lay, maintain and repair cables outside of territorial seas on an international basis rests on the protections of UNCLOS.
Powerful International Protection
In a global economy where the competition for use of the oceans is accelerating, disputes by competing nations and seabed users will most certainly occur with increasing frequency. The following international issues demonstrate what a powerful tool UNCLOS provides for overcoming encroachments on the freedom to lay cables:
• In 2004, French fishing vessels unreasonably obstructed a British repair vessel from carrying out cable maintenance off the coast of France by blocking its path. In these situations, UNCLOS provides remedies which would protect the cable owner’s rights. This was not only a British and French problem; the cable involved also carried U.S. traffic.
• Since 1998, China3 has been requiring permits, not for cables landing in the country, but for those that transit its Exclusive Economic Zone (EEZ). Since 1995, the Russian Federation has claimed the right to delineate cable routes on its continental shelf in the Arctic as far north as the North Pole. Both of these actions are violations of Article 79 of UNCLOS, which does not allow a coastal nation to delineate nor to permit the routes of transiting international cables on the continental shelf.
• In February 2006, in response to a proposal by the province of Nova Scotia to mandate cable routes and require payments to bottom fishermen for use of the seabed in international waters, North American cable owners based their strong jurisdictional arguments against the plan on the straightforward provisions of UNCLOS, which – since Canada is a party to the agreement – were binding. In April, in response, the Canadian government acknowledged that UNCLOS did indeed govern cable regulation outside of its territorial waters and indicated it would reconsider proposed regulations in this light.
Although the above examples repeatedly affirm the effectiveness of UNCLOS as a protection of the freedom to lay cable, U.S. companies are suffering because the U.S has not yet become a party. Once the U.S. agrees to become a party to UNCLOS, then U.S. telecommunications companies, the Navy and scientists will be able to enlist the federal government to enforce the rights of cable owners to lay, repair and maintain cables in international waters.
On the other hand, without the status of participation in UNCLOS, the U.S. has no access to the important remedies under UNCLOS to enforce treaty obligations on behalf of its companies or its government agencies.
From a global perspective – because UNCLOS provides a universal standard of conduct, rights and obligations which foster the development of international cables (to date agreed upon by 149 nations) – it can only benefit the U.S. and its telecommunications companies. However, without UNCLOS, U.S. companies are handicapped in competing with foreign business.
Closer to home, UNCLOS is also needed. The clear boundaries and universal norms required between seabed users and coastal nations are also essential with respect to our own federal and state government policies.
In the last eight years, the traditional rights of cable owners just outside of U.S. territorial waters have been the victim of steady encroachment by both state and federal agencies, which seek to expand their regulatory reach over international cables. California and Oregon seek jurisdiction out to 200 nautical miles – New Jersey, out to 110 nautical miles – off their respective coasts. Compare these figures with the state jurisdiction claims of three nautical miles over international cables asserted by Florida and New York, and one begins to appreciate the quandary of U.S. cable owners. These jurisdictional differences translate into added delays of one to two years – and millions of additional dollars – for installing new cable systems.
Such confusion would be harmonized by the universal legal controls of UNCLOS which would resolve most of the current uncertainty and conflict over the limits of the U.S. continental shelf and margin as well as the rights and obligations of international cables laid on it.
Without UNCLOS, the jurisdictional tug-of-war between various federal and state agencies will continue and may impact future decisions on whether international cables will even be landed in the U.S. – or whether Canada or Mexico might offer better commercial opportunities. Such a result would raise important issues for U.S. security.
UNCLOS provides a common reference which state and federal government agencies can use to gauge their jurisdiction with respect to a universally-defined norm. Besides complicating decisions and placing barriers to the installation or upgrade of existing U.S. cable infrastructure, the continued encroachment by the domestic states on traditional cable freedoms also encourages similar encroachment actions by foreign governments.
U.S. Debate Over Ratification
Critics of UNCLOS raise the argument that since many of the rights spelled out in UNCLOS can be considered customary international law to which the U.S. adheres, formal ratification of the treaty is not necessary.
However, this argument appears to fail in the real world. Customary international law requires a court decision to determine state practice before it can be deemed binding law. In a recent major noncable marine pollution case pending in court, the issue was the rights of a European coastal nation to refuse entry to a leaking supertanker after the crew had been rescued. Both sides presented expert witnesses and detailed memorandums arguing for different interpretations of the applicable state practice and customary international law. Until the judge decides the dispute, no resolution will be available. This issue would have been clearly addressed in UNCLOS.
Summary
Telecommunications companies cannot make business investments on such an illusive basis as customary international law; rather, they need reliable and discernable international law – which UNCLOS expressly provides. Being a party to such a treaty lends a quality, sharpness and ease of reference to issues which obscure aspects of customary international law simply cannot. Virtually all telecommunications companies that own or operate international cables would likely agree that UNCLOS is essential for their continued success. This treaty has been carefully reviewed during the 12 years since the U.S. became a signatory. The strongest support exists in the industry for action by the Senate this year with an up-or-down vote on UNCLOS.
For more information, e-mail Douglas R. Burnett at
douglas.burnett@hklaw.com or call toll free, 1-888-688-8500.
1 Rhode Island, Massachusetts, New York, New Jersey, Florida, California, Oregon, Alaska and Hawaii. Eleven cables land in the Northeast, 10 in Florida and eight on the West Coast.
2 http://www.jdfcable.com/
3 China ratified UNCLOS in 1996 and the Russian Federation did so in 1997.