THE LAW
Existing rules and new challenges
Workshop on Submarine Cables for
Ocean/Climate Monitoring and Disaster
Warning
Outline
• The laying of submarine cables: a traditional use
•
•
•
of the seas
Legal framework: The 1982 UN Convention on
the Law of the Sea (UNCLOS)
The right to lay submarine cables on the
continental shelf: balancing a freedom of the
high seas with the sovereign rights of the
coastal State
The “reasonable measures” that the coastal
State may take for the protection of its rights
over the continental shelf
Outline (cntd)
• New use of submarine cables: integration into a
•
•
•
•
real-time global climate and disaster monitoring
system
Re-use of out-of-service cables; attachment of
sensors/adding components to existing cables;
new generation of dual use/multi-purpose cables
Applicable rules under UNCLOS
“Accessibility” and “availability” of data
Conclusions
The laying of submarine cables: a
traditional use of the seas
• Since 1850, when the first international
•
telegraph link was established between England
and France, the objective of laying submarine
cables has been the same: to provide and
facilitate international telecommunications
The international community has recognized the
strategic value of submarine cables and since
1884 has adopted measures for their regulation
and protection (c.f. the 1884 Convention for the
Protection of Submarine Telegraph Cables)
Legal framework: UNCLOS
• Many of the provisions of the 1884 Convention
•
were incorporated into the 1958 Geneva
Convention on the Continental Shelf and
subsequently to UNCLOS, which provides the
general legal framework within which all uses
and activities in the oceans and seas are carried
out and determines the rights and obligations of
all States (coastal, flag and port States).
These rules have been examined in detail by the
previous speakers. Special reference, however,
should be made to the laying of cables on the
continental shelf.
• UNCLOS recognizes the right of all States to lay
•
submarine cables on the continental shelf, but at
the same time subjects this freedom to the right
of the coastal State to take “reasonable
measures” for the exploration of the continental
shelf and the exploitation of its natural resources
Although article 79(2) does not specify these
measures, it is widely acceptable that the
coastal State may require notification to its
competent authorities of the planned activity,
details of the cable ship and the purported
route. Submission of a report at the end of the
activities and possibly the presence of an
observer onboard may also be required.
Cable route surveys
• Similar requirements are often imposed by
•
coastal States with respect to cable route
surveys to ensure that the vessel is not engaged
in the exploration of their continental shelf and
the exploitation of its natural resources,
including submission of the survey data upon
completion of the survey.
Notification is essential also for avoiding
interference with other uses under coastal
jurisdiction and for issuing all the necessary
navigational warnings.
• At the same time, the national legislation of a
•
small number of States adopts permits
requirements for the conduct of surveys and/or
the laying of submarine cables on the
continental shelf.
Finally, some States claim that cable route
surveys fall within the notion of “marine
scientific research” (MSR) and thus under Part
XIII of UNCLOS and the consent regime of the
coastal State
• In concluding, the freedom to lay submarine
cables is not unlimited. UNCLOS recognizes the
legitimate interests -and in essence the security
concerns- of the coastal State on whose
continental shelf the cable will be installed, by
enabling it to take “reasonable measures” for
the exploration of the continental shelf and the
exploitation of its natural resources. As a result,
many coastal States apply in practice a
“notification and reporting system”.
New use of submarine cables
• The creation of a cabled real-time global climate
•
•
and warning system raises two fundamental
questions:
First, whether this new use of submarine cables
can be considered as falling within the scope of
the freedom of laying submarine cables
If not, which is the applicable legal regime under
UNCLOS? Is Part XIII (marine scientific
research) of any relevance? Will the consent of
the coastal State be required in such cases?
• Second, an equally important issue is that of
•
“accessibility” and “availability” of data. Will all
data be freely accessible or should there be
exceptions, i.e. for national security reasons or
for being related to the exploration and the
exploitation of the continental shelf?
All these questions wait for an answer before
the elaboration and effective implementation of
a cabled real-time global climate and disaster
monitoring system
Nature and scope of activities
• We may distinguish between two kinds of
•
•
projects:
a) Cabled Ocean Observatories, i.e. a where
observation sites (i.e. OBS, pressure gauge
instruments, seismographs, etc), are linked via
submarine cables that will allow data transfer to
shore in real time and
b) attachment of sensors and other scientific
equipment (i.e. seismometers, underwater
microphones, etc.) to existing submarine cables
(repeaters, specialized hardware etc)
Applicable rules under UNCLOS
• In our view, both cases should be considered as
•
•
falling under the legal regime of marine scientific
research.
It is true that UNCLOS does not define the term
“marine scientific research” and that there have
been heated debates as to whether
“hydrographic surveys” and/or the “collection of
oceanographic data” are excluded from Part XIII
of UNCLOS and the consent regime of the
coastal State.
Nevertheless, the installation of cabled ocean
observatories and climate change monitoring
and disaster warning systems do not appear to
raise similar issues.
Applicable rules under UNCLOS
(cntd)
• These activities cannot be interpreted as
•
inherent to the traditional freedom of laying
submarine cables or as “an international use of
the seas associated with the operation of
submarine cables” as provided for in article
58(1) of UNCLOS with respect to the EEZ.
There may even be room for claiming an “abuse
of right”, which is specifically prohibited by
article 300 of UNCLOS, namely that “States
Parties shall fulfill in good faith the obligations
assumed under this Convention and shall
exercise the rights, jurisdiction and freedoms
recognized in this Convention in a manner which
would not constitute an abuse of right”.
• It has to be recalled that under Article 258 of
UNCLOS, “the deployment and use of any type
of scientific research installations or equipment
in any area of the marine environment shall be
subject to the same conditions as are prescribed
in this Convention for the conduct of marine
scientific research”
Accessibility and availability of data
• Major concern for coastal States, especially
•
•
transit States
Possible exceptions for reasons relating to
national security and/or the exploration of the
continental shelf and the exploitation of its
natural resources
Argo Project: Guidelines for the Implementation
of Resolution XX-6 of the IOC Assembly
Regarding the Deployment of Profiling Floats in
the High Seas Within the Framework of the Argo
Programme
Accessibility and availability of data
(cntd)
• “All the data obtained by the Argo Programme floats
once they enter the EEZ will be made freely
available by the implementer, with the exception of
data of direct significance for the exploration and
exploitation of natural resources, whether living or
non-living, which, to protect its sovereign rights and
jurisdiction in its EEZ, the IOC Member whose EEZ
the float enters formally requires the implementer
not to be distributed’
• EuroSITES. Data policy: “The only complete
exception to the principle of free access is when
there is a notified issue of positive harm being
caused by the release of the data, i.e. to the
environment or to national/international security”
Thank you for your attention
Dr Anastasia Strati
Expert Counselor
Ministry of Foreign Affairs, Greece
Email: astrati@mfa.gr