Navigating the Depths of International Law: The Governance of Undersea Cables

Introduction

The recent internet disruption in Ghana, suspected to have been caused by damage to undersea cables carrying capacity to the landing station 4 cable owners, witnessed a lot of discourse about the legal intricacies involved. In an era where digital connectivity underpins global commerce, diplomacy, and social interaction, undersea cables emerge as the silent sentinels of international communication. The unassuming threads traversing ocean floors carry over 95% of international data, making them vital to every aspect of modern life. This article delves into the array of legal regimes governing these crucial infrastructures, highlighting how international law facilitates the intercontinental whisper that becomes a worldwide roar.

Historical Perspective on Undersea Cable Law

The legal odyssey of undersea cables began in the 19th century, paralleling the evolution of telecommunication. The 1884 International Convention for the Protection of Submarine Cables (ICPSC) was the pioneering legal instrument to recognize the importance of these cables, laying the groundwork for subsequent treaties. Over time, the Geneva Conventions expanded the legal protections, which were later absorbed and refined by the comprehensive United Nations Convention on the Law of the Sea (UNCLOS) in 1982. This historical progression underpins the contemporary legal scaffolding that upholds the operation and protection of submarine telecommunication cables.

Rights and Responsibilities Under UNCLOS

The United Nations Convention on the Law of the Sea (UNCLOS), often hailed as the "Constitution for the Oceans," dedicates several articles to undersea cables, articulating a nuanced regime of rights and responsibilities. Articles 79 and 112-115 specifically bestow rights upon states to lay submarine cables, while also outlining their obligations to protect these structures from harm. States are granted the freedom to lay cables on the continental shelf, yet this right is balanced with a duty to duly regard the interests of other states. These provisions form the legal backbone that upholds not only the freedom of installation but also the overarching framework for coexistence and mutual respect in the undersea cable domain.

The Geneva Conventions’ Role in Undersea Cable Law

Prior to UNCLOS, the Geneva Convention on the High Seas (GCHS) and the Geneva Convention on the Continental Shelf (GCCS) set precedents for undersea cable law. The GCHS Articles 26 to 30 established the principle that all states are free to lay submarine cables on the high seas. Moreover, Article 4 of the GCCS recognized the sovereign rights of the coastal state over the continental shelf, implicitly including cable laying. These Geneva Conventions shaped the legal understanding and practices concerning undersea cables, serving as a foundation that UNCLOS would later build upon to create a more comprehensive legal framework with a refined focus on the intricacies of submarine cable operations and their protection.

Protection of Submarine Cables: The 1884 ICPSC

The ICPSC stands as a historic milestone in undersea cable law. It was the first international agreement to specifically address the need to safeguard these vital communication links. The Convention, through its Articles 1-16, established various rules to prevent intentional and unintentional damage to cables, imposing a legal obligation on signatories to enact laws that punish cable damage. While technological advancements have dramatically changed the undersea cable landscape since 1884, the ICPSC's foundational principles still echo through modern international law, ensuring continuity of protection and legal clarity for undersea cable infrastructure.

Country-Permitting Authority Laws

The submarine cables are known to terminate their landing stations at the shores of countries where carriers or service providers can receive the capacity and distribute through their in-country infrastructure through the last-mile considered the downstream section of global internet and data services. Navigating the nexus of international and national law, country-permitting authority laws play a pivotal role in the governance of submarine cables. While international conventions set the overarching framework, the specifics of cable installation, maintenance, and repair often fall under the purview of national jurisdiction. These laws vary by country, but generally require operators to obtain permits before laying cables in territorial waters. The juxtaposition of international freedom and national control creates a dynamic legal environment, demanding careful consideration by cable operators to ensure compliance with both international treaties and local legislation.

Jurisdiction and Enforcement

The intersecting paths of law and the high seas create a unique challenge when it comes to jurisdiction and enforcement. Under UNCLOS, while the high seas are open to all states, no state may validly purport to subject any part of them to its sovereignty. This principle of freedom complicates the enforcement of laws concerning undersea cables. Jurisdiction becomes a patchwork, with coastal states exercising control over their continental shelves and exclusive economic zones, while on the high seas, it is the flag state of the ship that typically has jurisdiction. This intricate jurisdictional framework often requires collaborative international efforts to effectively address incidents of cable damage or unlawful activities.

Jurisdiction for Damages

When damage to undersea cables occurs, determining jurisdiction for the purpose of addressing liabilities is a complex task that international law seeks to clarify. UNCLOS asserts that states must adopt laws and regulations to prevent, reduce, and control pollution of the marine environment from cables, including measures to ensure cable repair. However, the challenge lies in incidents involving multiple jurisdictions, where the question of who is liable for damages hinges on the location of the incident, the nationality of the vessel involved, and the applicable legal frameworks. In such cases, international law provides mechanisms for dispute resolution and damage compensation, though these often require delicate and diplomatic negotiations.

Conclusion

As the world becomes increasingly digitized, the significance of undersea cables to global connectivity cannot be overstated. The international legal regimes from the venerable 1884 ICPSC to the encompassing UNCLOS have evolved to protect these essential lifelines of communication. Despite the robust framework in place, the complexities of jurisdiction and enforcement pose ongoing challenges. Looking forward, the interplay between technological advancements and legal developments will be crucial in adapting to new realities, ensuring that the law keeps pace with the innovation on the ocean floor. For stakeholders across the board—from legal professionals to technologists—the law of undersea cables represents a confluence of history, technology, and international cooperation, a space where vigilance and legal acumen will remain as essential as the cables themselves.

WRITER: Desmond Israel, Esq. is a dedicated Lawyer and a seasoned Data Privacy/Information Security Practitioner. As the Founder of Information Security Architects Ltd, a Rapid 7 Gold Partner, he brings an unrivalled depth of knowledge and experience to the field. He is an alumni of The George Washington University as a GW Law Merit Scholar. His academic endeavours as an Adjunct Lecturer at the Ghana Institute of Management and Public Administration further exemplify his commitment to education and mentorship. Spearheading critical research as the Lead Researcher for X-Reality Safety Intelligence within the Guardian Safety Framework in California, USA. With a keen focus on Technology Policy, especially concerning AI, Cybersecurity, Global Data Privacy, and Blockchain, Desmond Israel stands at the forefront of addressing some of the most pressing legal and technological challenges of our time. Email: [email protected]