N E TS AND THE INTERNET by Steven Shamburek
seas” including both “freedom of fishing” and “freedom to lay submarine cables and pipelines”1 or, as stated in a subsequent treaty, “freedom to lay submarine cables and pipelines” and “freedom of fishing.”2 Cable owners and commercial fishermen are equal tenants of the sea. Among the provisions in the applicable treaties is a requirement that when one tenant sacrifices to protect another tenant, the benefited tenant must recompense the sacrificing tenant. The treaties acknowledge what each would agree to do if they could negotiate before an interaction. In other respects, cable owners and commercial fishermen are left to accommodate their shared rights to use the sea.
Current international law governing the legal relationship between cable companies and commercial fishermen
Commercial Fishermen and Cable Companies Applicable International Law
The international law regarding the protection of undersea cables is generally established. There are three applicable treaties and one enabling statute of the United States in addition to customary international law3 and traditional maritime tort law.4
1
Some areas of law involve a “majority interpretation,” a “minority interpretation,” an exception, and an exception to the exception. And a suggestion that the entire analysis must be revisited because of recent developments in canons of statutory construction. By contrast, international law involving submarine cable owners and commercial fishermen is profoundly simple. The law recognizes “freedom of the
2
Geneva Convention On The High Seas. United Nations Convention On The Law Of The Sea.
See The Paquete Habana, 175 U.S. 677, 700 (1900); Article 38(1) of the Statute of the International Court of Justice; and 3
Section 102 addressing the “Sources of International Law” in the Restatement (Third) of the Foreign Relations Law of the United States and the Reporters’ Notes at 1. 4 See American Tel. & Tel. Co. v. M/V CAPE FEAR, 764 F.Supp. 97 (D.N.J. 1991), rev’d, 967 F.2d 864, 877 at n.15 (3rd Cir. 1992) (The two Cape Fear decisions address and discuss many of the critical legal issues).
Agreements/Conventions/Treaties 1. Submarine Cable Convention The International Convention for the Protection of Submarine Cables, 24 Stat. 989-1000, T.S. 380, 1 Bevans 89, concluded at Paris, France on March 14, 1884 and proclaimed by the President of the United States on May 22, 1885, is the primary international treaty that establishes international law involving the protection of undersea cables. The Cable Convention includes seventeen articles. Article 1 states that the Convention shall be applicable “outside of the territorial waters” of the High Contracting Parties. Article 2 states that the “breaking or injury of a submarine cable, done wilfully or through culpable negligence, and resulting in the total or partial interruption or embarrassment of telegraphic communications, shall be a punishable offense, but the punishment inflicted shall be no bar to a civil action for damages.” There is an exemption if the vessel owner is involved in “saving their lives or their vessels.” Id. Article 7 states: “Owners of ships or vessels who can prove that they have sacrificed an anchor, a net, or any other implement used in fishing, in order to avoid injuring a submarine cable shall be indemnified by the owner of the cable.” The Cable Convention has been adopted by over 40 nations. 2. Geneva Convention On The High Seas The Geneva Convention on the High Seas, 13 U.S.T. 2312, T.I.A.S. 5200, 450 U.N.T.S. 82, was adopted at Geneva, Switzerland on April 29, 1958, entered into force on September 30, 1962 and proclaimed
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