UNDERSTANDING THE DIFFERENCES UNDER UNCLOS BETWEEN
SUBMARINE CABLES AND MARINE SCIENTIFIC RESEARCH
ITU Workshop
Rome, Italy
September 8-9 2011
Douglas R. Burnett
International Cable Law Advisor, ICPC
Partner, Squire, Sanders & Dempsey
(US) LLP
PRESENTATION OVERVIEW
I.
SUBMARINE CABLES UNDER
INTERNATIONAL LAW
II.
DIFFERENCES THAT COUNT UNDER
UNCLOS FOR A DUAL USE
TELECOM/MSR CABLE
2
UNCLOS (3)
3
Nautical
Miles
UNCLOS (33)
12
Nautical
Miles
UNCLOS (57)
24
Nautical
Miles
200
Nautical
Miles
GCHS (26-30) High Seas
UNCLOS
(87,112-115)
High Seas
Territorial
Sea
REGIMES CHART
Contiguous
Zone
Depth in
meters
Exclusive Economic Zone UNCLOS (58, 113-115)
0
Shelf
edge
O ce a n
1000
2000
La nd
UNCLOS (79,113-115)
GCCS (4)
Geological
slope
Base of
the slope
Geological
rise
3000
4000
Continental crust (granite)
Oceanic crust (basalt)
5000
3
ADDING MSR TO A TELECOM CABLE
MAKES A BIG DIFFERENCE
•
UNLIKE CABLES, MARINE SCIENTIFIC RESEARCH (MSR)
IN THE EEZ AND UPON THE CONTINENTAL SHELF IS
SUBJECT TO COASTAL STATE CONSENT.
•
EFFORTS DURING NEGOTIATIONS BY THE U.S. AND
OTHER SEAPOWERS TO PROVIDE FOR THE FREEDOM
TO CONDUCT MSR WERE NOT SUCCESSFUL
•
UNCLOS PROVISIONS ON MSR REFLECT THE
COMPROMISE BETWEEN THE STATES FAVORING
FREEDOM OF THE SEAS AND THE COASTAL STATES
THAT DEMANDED ABSOLUTE CONTROL OF MSR IN THEIR
EEZ AND CONTINENTAL SHELF.
•
COASTAL STATES HAVE SOVEREIGN RIGHTS OVER
NATURAL RESOURCES AND MSR IN THEIR EEZ AND
UPON THEIR CONTINENTAL SHELF
•
A DUAL USE CABLE (TELECOM AND MSR) IS SUBJECT TO
THE MSR REGIME (PART XIII).
4
A MAJOR RISK
• UNCLOS ART.’S 245-246
• COASTAL STATES, IN THE EXERCISE OF
THEIR SOVEREIGNTY, HAVE THE
EXCLUSIVE RIGHT TO REGULATE,
AUTHORIZE AND CONDUCT MSR IN THEIR
TERRITORIAL SEAS, EEZ, AND ON THEIR
CONTINNENTAL SHELF.
• SO HOW DOES THAT COMPARE WITH
UNCLOS CABLE PROVISIONS?
5
COASTAL STATE CONSENT
REQUIREMENTS
UNCLOS MSR - COASTAL STATE CONSENT CAN BE
WITHHELD IN EEZ AND CONTINENTAL SHELF. (ART. 245, 246)
Direct significance for the exploitation and exploration of natural
resources, whether living or non-living
Drilling, use of explosives, introduction of harmful substances
Construction of installations and structures
Information provided to the coastal State is inaccurate
Prior outstanding obligations to the coastal State from a prior
research project
UNCLOS CABLES - NO COASTAL STATE CONSENT
REQUIRED, JUST A DUE REGARD OBLIGATION. (ART. 58, 78,
79, 87)
6
DESIGNATION OF “OFF LIMIT” AREAS
UNCLOS MSR - COASTAL STATE CAN
DESIGNATE AREAS IN THE EEZ AND ON
THE CONTINENTAL SHELF OFF-LIMITS FOR
MSR FOR EXPLORATION AND
EXPLOITATION OF NATURAL RESOURCES
(ART 246)
UNCLOS CABLES - AREAS IN THE EEZ AND
CONTINENTAL SHELF CAN NOT BE
PLACED OFF-LIMITS-ONLY LIMITATION IS
DUE REGARD. (ART 58, 78, 79, 87)
7
COASTAL STATE POWERS
UNCLOS MSR - MSR ACTIVITIES SHALL NOT
INTERFERE WITH ACTIVITIES UNDERTAKEN
BY COASTAL STATES IN THE EXERCISE OF
THEIR SOVEREIGN RIGHTS. (ART 246)
UNCLOS CABLES - NO SIMILAR
RESERVATION OF RIGHTS - ON THE
CONTRARY SEVERAL LIMITATIONS ON THE
COASTAL STATE IMPEDING THE LAYING AND
MAINTAINING OF CABLES (ART. 58, 79, 87)
8
DUTIES TO PROVIDE INFORMATION
UNCLOS MSR - DUTY TO PROVIDE INFORMATION TO THE
COASTAL STATE
NATURE AND OBJECTIVES OF THE PROJECT
METHODS TO BE USED INCLUDING THE NAME, TONNAGE,
TYPE AND CLASS OF VESSELS AND DESCRIPTION OF
SCIENTIFIC EQUIPMENT
EXPECTED DATE OF VESSEL APPEARANCE AND
DEPARTURE
NAME OF SPONSORING INFORMATION, ITS DIRECTOR, AND
PERSON IN CHARGE OF THE PROJECT
EXTENT THAT COASTAL STATE CAN PARTICIPATE OR BE
REPRESENTED IN THE PROJECT (ART 248)
UNCLOS CABLES - NO SIMILAR REQUIREMENTS (ART 58, 78,
79)
9
OBLIGATIONS TO ALLOW PARTICIPATION
UNCLOS MSR - DUTIES OF MSR SCIENTIST
COASTAL STATE TO PARTICIPATE OR BE
REPRESENTED ON BOARD VESSELS WITHOUT
COST TO THE COASTAL STATE. PROVIDE COASTAL
STATE WITH REPORTS, PRELIMINARY AND FINAL.
PROVIDE ALL DATA AND SAMPLES TAKEN
PROVIDE ASSESSMENT OF DATA, SAMPLES, AND
RESEARCH RESULTS
INFORM COASTAL STATE OF ALL MAJOR CHANGES
IN THE RESEARCH (ART 249)
UNCLOS CABLES - NO SIMILAR OBLIGATIONS (ART
58, 78, 79)
10
RIGHTS OF LANDLOCKED AND
GEOGRAPHICALLY CHALLENGED
NATIONS
UNCLOS MSR - ART 249 RIGHTS ARE ALSO
EXTENDED TO NEIGHBOURING LAND-LOCKED
STATES AND GEOGRAPHICALLY DISADVANTAGED
STATES PROVIDED THE COASTAL STATE DOES
NOT OBJECT TO THE PARTICIPATION OF QUALIFIED
EXPERTS APPOINTED BY THE NEIGBORING
LANDLOCKED OR GEOGRAPHICALLY
DISADVANTAGED STATES) (ART 254)
UNCLOS CABLES - LANDLOCKED STATES OR
GEOGRAPHICALLY DISADVANTAGED STATES HAVE
NO RIGHTS TO PARTICIPATE IN A SUBMARINE
CABLE PROJECT (ART. 58, 78, 79, 87)
11
OBLIGATION TO RECOVER OUT-OFSERVICE CABLES
UNCLOS MSR - UNLESS OTHERWISE
AGREED, OBLIGATION TO REMOVE ALL
INSTALLATIONS OR EQUIPMENT WHEN
RESEARCH COMPLETED. (ART. 249)
UNCLOS CABLES - NO OBLIGATION TO
RECOVER INTERNATIONAL CABLES NOT IN
SERVICE OUTSIDE OF TERRITORIAL SEAS.
(ART. 58, 78, 79)
12
COASTAL STATE POWERS TO
SUSPEND OR TERMINATE SERVICES
UNCLOS MSR - COASTAL STATE CAN
SUSPEND OR REQUIRE CESSATION OF MSR
FOR FAILURE TO COMPLY WITH ART. 249
AND THE MSR OPERATION MUST BE
TERMINATED WITHIN A REASONABLE TIME.
(ART 253)
UNCLOS CABLES - OUTSIDE OF
TERRITORIAL SEAS THERE IS NO RIGHT BY
THE COASTAL STATE TO SUSPEND OR
REQUIRE CESSATION OF SERVICES OR
TERMINATE SERVICES UPON NOTICE BY A
COASTAL STATE. (ART 58, 78, 79)
13
MARKINGS AND REGISTRY
REQUIREMENTS
UNCLOS MSR - INSTALLATIONS AND
EQUIPMENT MUST BEAR IDENTIFICATION
MARKINGS INDICATING THE STATE OF
REGISTRY (ART 262)
UNCLOS CABLES - NO MARKING
REQUIREMENTS AND NO STATE OF
REGISTRY (ART 58, 78, 79, 87, 112)
14
THIRD PARTY LIABILITIES
UNCLOS MSR - LIABILITY FOR DAMAGE
CAUSED BY FAILURE TO COMPLY WITH
MSR REQUIREMENTS AND POLLUTION OF
THE MARINE ENVIRONMENT (ART. 263)
UNCLOS CABLES - NO LIABILITY FOR MSR.
LIABILITY FOR DAMAGE TO OTHER
CABLES OR PIPELINES INJURED DURING
LAYING AND REPAIR (ART. 114, 115)
15
THE DIFFERENCE: EIG CASE STUDY
Europe India Gateway (EIG) international telecommunication cable
system (2011) showing nations in green where landing permits are
required.
• PLACE HOLDER FOR SLIDE TO BE
RECEIVED FROM AT&T
16
THE DIFFERENCE: EIG CASE STUDY
Europe India Gateway (EIG) international telecommunication cable
system (2011) showing nations in green where landing permits are
required.
EIG dual use cable system for telecommunications and marine
scientific research (MSR) show additional nations in red where MSR
permits would be required to lay and maintain the system in the
Exclusive Economic Zone (EEZ) of non-landing nations.
17
THE DIFFERENCE: AAG CASE STUDY
18
THE DIFFERENCE: AAG CASE STUDY
19
EXAMPLES OF USE OF MSR IN CABLES
THAT MAKE PRACTICAL SENSE
• OUT-OF-SERVICE CABLES
• CABLES ALREADY IN USE WITH THE
EXPLORATION OF NATURAL RESOURCES
• SINGLE USE MSR APPLICATIONS (I.E. THE
NEPTUNE SYSTEM IN CANADA)
20
QUESTIONS?
•
Perth
21