FEATURE
ASSESSING OFFSHORE RISKS FACING CABLE ASSETS IN DISPUTED WATERS BY DR PIETER BEKKER AND ROBERT VAN DE POLL INTRODUCTION
With the oceans covering some 70 percent of the Earth’s surface, maritime boundary disputes represent a key area of investment risk assessment for offshore investors, including the telecommunications cable industry. Just over 50 percent of the world’s maritime boundaries have been delimited by treaty, and those that are covered by treaty are not always clearly defined. The number of boundary-related disputes is a function of the number of coastal States and their potential boundaries: out of the 193 Member States of the United Nations, there are 162 coastal States having oceanic coastlines. The exercise of some type of jurisdiction over multi-jurisdictional submarine cables and cable-related activity by coastal States may result in concurrent jurisdiction, and consequently, conflicts of jurisdiction on the part of various countries, including the coastal States at both ends of the cable system, the transit State—defined as the coastal State whose maritime zone(s) a transiting submarine cable traverses, without such State having a direct economic interest in the cable—, and possibly the State under the laws of which the owner of the cable, or the cable (survey) ship, is incorporated and in whose territory the owner has its registered office. Thus, various States may exercise concurrent jurisdiction over various parts of a cable system and cable-related activity based on different rules and principles.
50 SUBMARINE TELECOMS FORUM MAGAZINE
Two common scenarios triggering conflict and uncertainty involve, first, a common pressure-connected deposit that is located in a maritime area claimed by two or more coastal States and, second, the situation where a common deposit is found straddling an established boundary. Coastal States routinely issue new offshore oil and gas blocks near or beyond unresolved maritime boundaries. This practice has resulted in an increase in boundary-related disputes involving coastal States combined with an increased submission of such disputes to international courts and tribunals, with international oil companies holding acreage, and companies owning or planning submarine telecommunications cables, in disputed maritime zones being caught in the middle and facing uncertainty pending resolution of the inter-State boundary dispute. The Law of the Sea and related United Nations rules and procedures govern any offshore activity, and they dictate the rights and obligations of the world’s 162 coastal States. This includes the rules set forth in the United Nations Convention on the Law of the Sea (“UNCLOS”), a multilateral treaty that is presently in force for 168 countries. Many of its provisions reflect customary international law and as such also bind States that have not ratified this “Constitution for the Oceans,” the United States being a prominent example. Maritime boundary delimitation involves a combination of geoscience and international law, the two disciplines being