The stakes on intercontinental submarine fibre optic cable are very high and these cables need to be protected to ensure seamless connectivity across the globe.
About 71% part of our earth is water (15% of oceanic ice included) and the rest is land. In general humans, the most advanced and civilized living species on the earth have generally been ‘land clasping’. Basic mental orientation and the dependence of humans for their survival are land centric. From time unknown, oceans have also been used by mankind as an alternate domain. Mainly the sailings and voyages undertaken were for trade and commerce.
With the advancement of technology, industries and the realization of depleting resources over land, the use of oceanic resources, both living and non-living has been catching the attention of all. Use of the maritime domain for the purpose of trade and transportation, exploration of oil and minerals, fishing, etc. is ‘eye-catching’, visible and in the knowledge of the common man. However, one of the most important uses of the sea and that of the sea bed that may not be so much visible to the public is for laying of ‘cables’, generally known as submersible cables.
Submersible cables are extensively used for carrying communication and data from one place to another. Modern fibre optic cables, both intercontinental and international, have become an inseparable part of modern human life and have deservingly earned a sobriquet of ‘‘information superhighways’. It may be interesting to note that the first ever underwater cable for commercial use was laid across the English Channel in 1850 by the English Channel Submarine Telegraph Company. As of today, approximately 14 lakh km of cables are estimated lying underwater. More than 95 % of data exchange all over the world takes place through these cables. It may be interesting to note that both private and consortium-based model is prevalent as far as ownership rights of these cables are concerned.
In the Indian context, the nation in keeping pace with the world is expanding its digital infrastructure, and a critical component of this development is the laying of submarine cables. India is strategically positioned with access to submarine cable landing points along its coastline. These landing points can serve as the entry and exit points for the submarine cables, facilitating international data transmission. Here, a mention of the much-publicized submarine cable connecting the mainland of India to the Andaman and Nicobar Islands which has been a game-changer in terms of communication and internet connectivity is also pertinent. It has transformed the islands’ digital landscape, enabling faster and more reliable connectivity, driving economic growth, and opening up new opportunities for the residents and businesses in the region. With ongoing advancements in technology and increasing data demands, India is likely to witness further expansion and upgradation of its submarine cable infrastructure in times ahead towards establishing the country as a global technology hub. Indian companies namely Tata Communications, Reliance and Bharti Telecom etc. are major partners in using these cables for commercial purposes.
These submersible cables, however, are vulnerable to damages, both intentional and otherwise. It is highly desirable that any damage and injury inflicted to these cables, particularly intentional or even otherwise be made a punishable offence without any ambiguity. It was in 1884 when a group of countries concluded the ‘International Convention for Protection of Submarine Telegraph Cables’ (Paris Convention). Bringing it to on table and crystallizing a regulatory framework for the protection of submerged cables within about 34 years of establishment is clearly indicative of the forethought and importance of the issue. Article II of the Paris Convention declares it a punishable offence to break or injure a submarine cable, willfully or by culpable negligence, in such a manner as might interrupt or obstruct telegraphic communications, either wholly or partially. As per Article I, the Paris Convention applies to ‘outside territorial waters to all legally established submarine cables landed on the territories, colonies or possessions of one or more of the High Contracting Parties.’ However, a lot of water has flown since the adoption of the Paris Convention. Ratification and Adoption of the UNCLOS have defined and demarcated maritime zones with levels of usage & jurisdiction over it. The very nature of cables has changed so much that all kinds of modern submarine cables may not fit into the definition of plain submarine cable and requires inclusion in various provision of the acts. A typical example of such a situation is the provisions of India Telegraph Act1885 that do not explicitly identify modern-day Optical Fibre as telegraph though it remains a matter of legal interpretation. United Nations Laws of The Seas do address the requirement of member nations to adopt domestic laws, but various articles do not cover the complete gamut of maritime areas and offences.
A quick summary of existing provisions in UNCLOS is tabulated below:-
|21||Laws and regulations of the coastal State relating to innocent passage||1. The coastal State may adopt laws and regulations, in conformity with the provisions of this Convention and other rules of international law, relating to innocent passage through the territorial sea, in respect of all or any of the following: ……….(c) the protection of cables and pipelines;|
|51||Existing agreements, traditional fishing rights and existing submarine cables.||.|
|79||Submarine cables and pipelines on the continental shelf . . .|
|112||Right to lay submarine cables and pipelines|
|113||Breaking or injury of a submarine cable or pipeline||Every State shall adopt the laws and regulations necessary to provide that the breaking or injury by a ship flying its flag or by a person subject to its jurisdiction of a submarine cable beneath the high seas done wilfully or through culpable negligence, in such a manner as to be liable to interrupt or obstruct telegraphic or telephonic communications, and similarly the breaking or injury of a submarine pipeline or high-voltage power cable, shall be a punishable offence. This provision shall apply also to conduct calculated or likely to result in such breaking or injury. However, it shall not apply to any break or injury caused by persons who acted merely with the legitimate object of saving their lives or their ships, after having taken all necessary precautions to avoid such break or injury.|
|114||Breaking or injury by owners of a submarine cable or pipeline of another submarine cable or pipeline|
|115||Indemnity for loss incurred in avoiding injury to a submarine cable or pipeline|
In fact, some of the very important aspects of the Paris Convention have not found a place in UNCLOS. For example, civil liability for cable breakage and authority to designated ships to board and inspect a vessel at sea that may be a suspect of willful or negligent damage to cables.
Article 3 of UNCLOS 1982, to which India is a party, requires the members to ‘adopt laws and regulations in conformity with UNCLOS and other rules of international law relating to innocent passage through the territorial sea with respect to such matters as the protection of submarine cables’. Domestic laws of some the countries like Australia and New Zealand provide provisions to take legal action against causing damage to such cables.
In the Indian context, its domestic laws elude the clarity of their applicability to all types of modern cables squarely over national and international waters. The Maritime Zones of India Act 1976 stipulates provisions for laying of underwater cables at Sub-Section 7 of Section 6 and Sub-Section 8 of Section 7, which states that “the Central Government may not impede the laying or maintenance of submarine cables or pipelines on the continental shelf and Exclusive Economic Zone by foreign States: Provided that the consent of the Central Government shall be necessary for the delineation of the course for the laying of such cables or pipelines.” However, there is no mention of protective measures in the Act or any rules framed under Section 15 of the Act. The framing of Rules under Sub-Section 2(d) of Section 15 with an interpretation of Devices for Cables can be an option for way ahead.
Provisions of the Information Technology Act 2000 and those of the SUA Act 2002 can also be used partially to initiate legal actions against alleged offenders, however, the applicability of various provisions of different laws against perpetrators of damages to these cables is complex, cumbersome and not fool-proof. What makes the applicability of laws further cumbersome, is the nature of the ‘domain’ they are laid in and the applicability of international laws to this domain and the ownership pattern of such cables.
Domain, because these cables are laid on the sea bed between various parts of the world. As per ‘UNCLOS (United Nations Convention on the Law of the Sea), the seabed, except what lies beneath its territorial waters (12 NM from the coast) is not ‘owned’ by that country. Generally, none of the domestic ‘criminal’ laws is applicable beyond territorial waters (and below such columns of water) unless otherwise specified in view of the state not having sovereign rights over those areas. For example, under Indian domestic laws, booking an individual in case of a theft of a part of cable at a distance of (say) 20 NM, will not be an easy task. What makes this task more complex is the limited number of designated police stations that only ‘accept’ an FIR against an alleged crime that has been committed at sea. There exists a provision made in UNCLOS (Article 113) where a Flag state is supposed to adopt laws and regulations making injury and willfully damages to the submarine cables (except while engaging in legitimate objects like saving their lives or of their ships) by the ‘vessel or its nationals’ a punishable offence. There, however, exists an ambiguity whether any other State could exercise its jurisdiction, if the Flag State has not enacted adequate laws extending appropriate jurisdiction over its nationals/vessels operating in high seas or is not a party to UNCLOS.
As far as ownership of underwater cables is concerned, it is complex in view of maximum ownership models being consortium-based. A corporate entity, despite clearly owning a ‘landing station’ in (say) Chennai and connecting cable within the Indian water (territorial water), may not enjoy the exclusive ownership of cables connected with this landing station that lies on the high seas. This situation is relevant to other members of the ‘consortium’ who may clearly own the cable within the territorial waters of their native countries but beyond territorial waters, the ownership may belong to a consortium. Further, the owners under the umbrella of existing legal provisions may sublet the ownership rights to other user companies making it further complicated to find the exact owner, should there be a requirement to take action against them.
Australia and New Zealand have notified ‘cable protection zones’. In such zones, certain activities like anchoring, trawling etc. that can result in damaging underwater cables are prohibited. New Zealand has, in 1996, by the enactment of the submersible cables and Pipe Line Protection Act ‘notified’ areas, including some within EEZ, where fishing operations and anchoring by ship are declared as an offence.
It may be appreciated that even if the different nations (including India) bring out their respective national laws, they will still not be able to ‘punish’ the offenders if the crime is executed outside the notified area.
To conclude, the vulnerability of the submarine cables to intentional damage, theft and other illegal activities (say spying) can not be undermined. What makes that difficult is the availability of appropriate laws (both international and domestic), the complexity of applicability of various provisions of UNCLOS (one has to read between the lines to correctly interpret if an article of UNCLOS is applicable to submersible cables) and finally the complicacy of ownership of these cables. Probably the best way to respond to such threats will be a ‘universal jurisdiction’ to all nations. Prior consensus to achieve this universality may take a long time. In the interim, India may urgently think of amending/ bringing clarity in applying domestic laws to contingencies arising out of damages to submersible cables wherever Indian interests are harmed, establishing protection zones, beyond territorial waters to ensure the safety of such important underwater assets.
Disclaimer: The views and opinions expressed by the author do not necessarily reflect the views of the Government of India and Defence Research and Studies. The views expressed by the author are purely personal.
Title image courtesy: Lawfare Blog