Repair of International Cables Under UNCLOS By Douglas R. Burnett
In recent years there has been a disturbing trend of coastal States to impose permit requirements on the emergency repair of international cables, including repairs which take place outside of a nation’s territorial sea, normally 12 nautical miles (NM) from the coastal baseline. These are examples of coastal State encroachment on the rights and obligations of cable owners under the United Nations Convention on the Law of the Sea (1982) (“UNCLOS”).1 This 1 154 States and the EU are parties to UNCLOS. The United States has been a signatory since 1994, but the U.S. Senate has not scheduled a vote on ratification in the fourteen years that have passed since the President sent to convention to the U.S. Senate for its advice and consent. On October 31, 2007, following extensive hearings, the Senate Foreign Relations Committee voted 17-4 to send the Convention to the full Senate for its advice and consent.
trend degrades the world’s undersea communication network for several reasons. First, because of permitting delays, emergency repairs are delayed. Cable ships stand by when they should be carrying out repairs. If during the permit delay period, the cable were to suffer another fault in another segment, communications could be lost on the cable.2 The Hengchun earthquake of December 26, 2 Modern cable systems employ ring architecture. Ring architecture allows a cable system to restore its service almost immediately upon a fault on one segment of the ring system by automatically rerouting the traffic direction through the other segment of the ring system. Ring systems are used in high-capacity fiber optic systems, because satellite restoration of an injured cable system is no longer feasible. When one segment of the ring system is no longer available pending repair, the cable is at high risk because a fault in the other ring segment will effectively shut down all communications on the cable until repairs are completed.
2006, wherein 18 faults were recorded on 19 cables and communications were not fully restored for 49 days underscores that time is always of the essence when a cable requires repair.3 Second, unnecessary costs are incurred. The costs include permit costs, requirements that cable owners hire approved “guard boats” (State owned or controlled), and other expenses. Increased hire payments to cable repair ships also result. Third, and most important, all of these extraterritorial requirements must be recognized for what they are: infringement and unjustifiable interference of cable owners rights to maintain its cable in international waters4. UNCLOS provides for these rights. Besides monetary costs and increased risks to communication security by impeding efficient repairs, the escalating and encroaching nature of extraterritorial control is especially troubling for future cable maintenance. The cable owner’s right to maintain international cables under UNCLOS. Permits for repairs to international communication cables outside of territorial seas violate UNCLOS. These actions infringe upon the cable owner’s rights to maintain the cables and constitute unjustifiable interference with the same. The relevant UNCLOS articles are 58, 78, and 795, set out and discussed below: 3 Press release of the International Cable Protection Committee Ltd, dated March 21, 2007. www.iscpc.com 4 The ability to maintain robust, reliable, and resilient communications worldwide for customers depends upon observance by all nations of international law requirements set forth in UNCLOS. When one nations fails to comply with these international norms, a negative precedent endangers universal compliance by other coastal States which compromises international communications. 5 These articles evolved in most respects from the International Convention for Protection of Submarine Cables (March 14, 1884), 24 Stat. 989, 25 Stat. 1424, T.S. 380 (entered into force for the United States on May 1, 1888. (“Cable Convention”); the Geneva Convention on the High Seas (Apr. 29, 1958), 13 U.S.T. 2312, T.I.A.S. 5200, 450 .N.T.S. 82 (entered into force for the United States on September 30, 1962( (“High Seas Convention”), and the Geneva Convention on the Continental Shelf, 15 U.S.T. 473, U.N.T.S 7302 (entered into force for the United States on 10 June 1964). (“Continental Shelf Convention”).
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