The crisis of international law

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As a layman, it is commonly believed that data and communication signals pass through several satellite systems orbiting the earth. However, this is a serious misconception. As one writer says, “But that the communications signals themselves are then split into bits of data, which then travel the depths of the ocean at the speed of light via invisible cables, is hard to imagine.”[1] The reality is that 99% of the world’s communications data currently travels through hidden submarine cables. These are now rightly called the “invisible arteries of globalization”.[2] These submarine cables function as a global infrastructure for the movement of among others big data, communication signals, telephone traffic and even financial capital across the world. Over the past decade, the weaknesses and gaps in the protection of such submarine fiber optic cables under international law have been highlighted. This article aims to critically analyze the vulnerability of international law to protect these global underwater data highways.

History and background

In 1858, the first transatlantic submarine cable was laid between Ireland and Newfoundland which broke 26 days later.[3] In 1864 another transatlantic cable was placed between the same territories and this time it turned out to be successful. Following this success, there was no turning back and submarine cables were placed between various territories along the seabed of the Pacific Ocean.[4] Interestingly, the transmission speeds of these early telegraph cables were 12 wpm, which increased exponentially to 200 wpm in the 1920s. The invention of the telephone expanded the use of these transcontinental cables. . From the early 1950s until the late 1960s, submarine coaxial cables dominated intercontinental voice communications.[5]

It was the invention of satellite systems in the 1970s that significantly reduced the use of submarine cables for communication technologies. Although satellite systems dominated the telecommunications world for over a decade, they were quickly replaced by the invention of fiber optic cables. Fiber optic cables were more capable of carrying large amounts of data and signals than the coaxial cables of old.[6] The first fiber-optic cable was laid in 1986. As of 2019, there are 241 active and distinct submarine fiber-optic cables that map a length of 1.1 million kilometers (km) of the seabed.[7] One author points out the predominance of submarine cables over satellites by the fact that if they stop transmitting, then “Only 7% of the total volume of data traffic in the United States could be carried by satellite”.[8]

Global significance and the problem of “materiality”

Submarine cables are a crucial element of the digital economy, enabling the flow and exchange of data. Surprisingly, they are considered intangible, intangible and non-territorial in the international legal framework.[9] It is understandable that an average person using the Internet is not aware of the physical aspect of data transmission. However, international law and its supremacy are based on physical objects and materiality. Experts in international law are now increasingly engaging in such a method of analysis in relation to archetypal theoretical frameworks. Hohmann and Joyce explain that “By revealing the deep entanglements of international law and the material things around us, we can begin to understand how international law structures and disciplines its subjects – and defines the contours of the possibilities and limits of our lives – through objects. “[10]

It is absolutely imperative that international law recognize the physical character of submarine cables which are now deeply linked to the social, economic, legal and technological orders of the digital age. International law and its dominance are shaped by the physical infrastructure which is an important factor in the growth of modern digital economies. Submarine cables are now the subject of competition and struggle between state and non-state actors (eg developers and companies). These struggles include title, control, access and territorial sovereignty.[11] This is all a matter of international law and efforts must be made to enable fair regulation.

International legal framework and challenges

The protection and safety of submarine cables was the subject of at least seven different international conventions between the end of 19e century and early 20e century. It all started with “The Convention for the Protection of Submarine Telegraph Cables (1884)” which was inked in Paris. The 1884 convention was applicable in the territorial waters of the signatory states, making damage to such cables a punishable offense.[12] The primary objective of this treaty was to encourage the states parties to enact national legislation protecting these cables.

The world has changed from telegraph to telephone, but these submarine cables have remained of paramount importance in communications technology. These cables were on the agenda of the United Nations International Law Commission (ILC) on the law of the sea. At the Conference on the International Law of the Sea (1958), three articles relating to the protection of cables submarines were incorporated into the Geneva Convention on the Law of the Sea (1958).[13] It was also agreed that the provisions of the 1958 Conventions will not affect any earlier treaties (including the 1884 Convention).[14]

In 1973, the United Nations organized a third conference to discuss the law of the sea, which subsequently resulted in the “United Nations Convention on the Law of the Sea, 1982 (UNCLOS)”. Again, three provisions (Articles 113 to 115) deal specifically with the protection of submarine cables. Unfortunately, neither the 1982 UNCLOS nor the treaties that preceded it could properly envision the importance of submarine cables in the digital age.

In accordance with art. 21 and 113 of UNCLOS, riparian states have the power to adopt national legislation to protect submarine cables or any other conduit that is under their territorial waters. States have no obligation to adopt such legislation, and for this reason, most riparian States have refrained from doing so. Numerous studies and reviews have shown that there is little or no national legislation criminalizing any damage to such cables.[15]

In addition to this, there is no legal regime that could potentially prosecute offenders who damage submarine cables on the high seas. UNCLOS limits legal protection to flag ships.[16] This implies that riparian states could prosecute foreign ships for damaging fiber optic cables in their territorial waters, but not otherwise. As a result, there are significant gaps in the lawsuits for intentional or negligent damage to such important infrastructure. It is clear that submarine cables are more prone to nefarious designs to disrupt the communications of foreign ships of adversary states on the high seas. In terms of technological advancements, the data transmission network has grown by leaps and bounds. . Legally, the international framework did not follow.

Conclusion

In a modern digital world, these hidden submarine cables are a site of politics, power, communication and especially contestation. These cables can At first glance be an invisibility. But the real importance of an invisibility lies in the phenomenon that it envelops. It is high time for international law to recognize that the global digital economies function and thrive on a hidden network of key infrastructure that needs better and impenetrable protection.


[1] Douglas R. Burnett & Lionel Carter, International Submarine Cables and Biodiversity of Areas Beyond National Jurisdiction: The Cloud Beneath the Sea, BRILL RESEARCH PERSPECTIVES IN THE LAW OF THE SEA, 3 (2017).

[2] Surabhi Ranganathan, The Invisible Arteries of Globalization, Visualizing Climate and Losses, http://histecon.fas.harvard.edu/climate-loss/lawofthesea/arteries.html

[3] Lionel Carter & Douglas R. Burnett, Subsea Telecommunications, in ROUTLEDGE HANDBOOK OF OCEAN RESOURCES AND MANAGEMENT, 349, 350 (Hance D. Smith, et al. Eds., 2015)

[4] Stewart Ash, The Development of Submarine Cables, in SUBMARINE CABLES: THE HANDBOOK OF LAW AND POLICY

[5] Lionel Carter & Douglas R. Burnett, Subsea Telecommunications, in ROUTLEDGE HANDBOOK OF OCEAN RESOURCES AND MANAGEMENT, 349, 350 (Hance D. Smith, et al. Eds., 2015)

[6] Same

[7] Working group 8 Routing and landing of submarine cables, Final report – Protection of submarine cables by spatial separation, THE SECURITY, RELIABILITY AND INTEROPERABILITY OF COMMUNICATIONS COUNCIL IV, 1

[8] Stephen C. Drew & Alan G. Hopper, Fishing and Submarine Cables: Working Together, International Cable Protection Committee (February 23, 2009), p. 8, available at https://www.iscpc.org/publications/

[9] Territoriality and intangibility: cross-border data flows and national sovereignty, in Beyond National Sovereignty: International Communication in the 1990s 259 (Kaarle Noerdensteng & Herbert I. Schiller eds., 1993)

[10] International Law’s Objects, 2 (Jessie Hohmann & Daniel Joyce eds., 2019).

[11] Jeremy Page, Kate O’Keeffe and Rob Taylor, America’s Underwater Battle with China for Control of the Global Internet Network, Wall Street J. (March 12, 2019)

[12] George Grafton Wilson, The Law of Territorial Waters, 11 p.m. J. INT’LL 2, 241-380 (April 1929)

[13] Eric Wagner, Submarine cables and protections provided for by the law of the sea, 19 MARINE POLICY 2, 127, 135 (March 1995)

[14] High Seas Convention, April 29, 1958, 450 UNTS 11 (codifying this provision in Article 30, extract here: “The provisions of this Convention do not affect conventions or other international agreements already in force, between States who are parties to it. ”)

[15] Robert Beckman, Protecting Submarine Cables Against Intentional Damage, in SUBMARINE CABLES: THE

LAW AND POLICY MANUAL

[16] UNCLOS (1982), art. 27

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