Submarine cables are criticial infrastructure for international communications and energy transport. Today, submarine cables carry 99% of international communications and are utilized not only for communications purposes but also in diverse fields suc...
Submarine cables are criticial infrastructure for international communications and energy transport. Today, submarine cables carry 99% of international communications and are utilized not only for communications purposes but also in diverse fields such as education, culture, entertainment, and economic security. However, the increased utilization of submarine cables has not only had positive effects. Dependence on submarine cables has intensified, and the potential for damage to submarine cables has also become significant.
Submarine cables are highly vulnerable to external and physical factors. Nearly 200 submarine cables are damaged each year, with over 70% of these damages occurring during normal maritime activities such as fishing and navigation. Despite the critical role submarine cables play in the international community, their vulnerability to damage during normal maritime activities necessitates careful discussion on International Law of the Sea to protect them.
International Law of the Sea, including UNCLOS, divides the oceans into spatial areas based on territorial sea baselines and regulates the scope of jurisdiction based on the legal status of each waters. Therefore, given the nature of submarine cables, which cross waters of several States, the rights and obligations applicable to each submarine cables vary depending on the waters in which it is located. There is no question that under UNCLOS, in cases of submarine cables related to the sovereignty, sovereignty rights, and jurisdiction of coastal states, coastal states can exercise legislative and executive jurisdiction to protect these rights. However, in cases of submarine cables unrelated to coastal state rights, the relevant legal principles remain unclear.
This paper examines the current status and limitations of submarine cables under International Law of the Sea by analyzing the conventions governing them. Furthermore, it analyzes international trends in protecting submarine cables, identifies various measures currently being discussed, and identifies relevant International Law of the Sea issues. Furthermore, it assesses the legal validity and applicability of measures necessary to protect submarine cables in each maritime space.
This paper analyzes the treaties governing submarine cables. It reveals that International Law of the Sea grants exclusive jurisdiction to flag States for the protection of submarine cables subject to high seas regulations. However, it is important to note that flag States are not always well-positioned to protect submarine cables. Vessels often navigate far from their flag States. Furthermore, considering that more than half of the global shipping fleet is flag of convenience, it is difficult to expect flag of convenience States, lacking a genuine link to vessels, to exercise appropriate jurisdiction.
Due to the aforementioned flaws in International Law of the Sea and flag state doctrine, the international community today is taking various steps to protect submarine cables. Accordingly, this paper analyzes international trends by dividing them into international organizations and states practice. The UN, through its General Assembly, recognizes submarine cables as critical infrastructure and urges their protection in accordance with International Law of the Sea. NATO has designated submarine cables as critical infrastructure, established dedicated facilities for physical protection, and conducts surveillance operations against activities that threaten them. ICPC issues recommendations and promotes cooperation to protect submarine cables. However, none of these organizations have binding force on all States, limiting their ability to provide a fundamental response. Examining State practices, it appears that recognition of submarine cables as critical infrastructure and the proliferation of actions to protect them are ongoing. However, the content and effectiveness of such actions vary across States, and some appear to be inconsistent with the UNCLOS. Against this background, the ILA established the Submarine Cable and Pipeline Committees and published three interim reports by 2024. This paper examines these reports to understand the trends in the ILA's discussions. The first interim report primarily addresses issues related to the laying of submarine cables. The second interim report addresses preliminary surveys for submarine cable laying, topics derived from the first interim report. The third interim report builds on the first and second interim reports to address International Law of the Sea issues related to measures necessary to protect submarine cables.
This paper divides the ocean into waters under national jurisdiction and waters beyond national jurisdiction, and analyzes the International Law of the Sea issues related to measures to protect submarine cables by waters. Waters under national jurisdiction are divided into waters under sovereignty and waters under sovereign rights and jurisdiction. First, in waters under sovereignty, this paper addresses the possibility of third-party monitoring based on right of passage and the repair and maintenance of submarine cables in territorial sea. Next, in waters under sovereign rights and jurisdiction, this paper focuses on the protection of submarine cables within the EEZ, subject to high seas regulations. This paper examines other rules of international law and freedom of navigation, and freedom to lay submarine cables as a basis for protecting submarine cables in this waters. In the waters beyond national jurisdiction, the applicability of the piracy doctrine under the UNCLOS, the possibility of protecting submarine cables through the expansion of criminal jurisdiction, and the possibility of invoking necessity.
In conclusion, submarine cables, subject to the rules of the high seas, appear to have unclear remedies under existing International Law of the Sea unless the flag State of the offending vessel or the nationality of the crew on board exercise jurisdiction. Therefore, it is fundamentally unlawful for a State other than the flag State to take preventive and enforcement measures without the consent of the offending vessel or the flag State of the vessel. However, considering that submarine cables carry 99% of international communications and are recognized as critical infrastructure by various international organizations and States, the benefits gained from protecting them are likely to constitute a essential interest. Therefore, if damage to a submarine cable is expected to result in significant harm to essential interests, invoking necessity to take preventive measures is considered the most persuasive legal argument at this time.