Claims In Disputed Maritime Areas: Resolving International Disputes Arising From Activities Relating To Submarine Cables In Disputed Maritime Areas -…

There exist over 430 submarine cables in operation around theworld that carry over more than 97 per cent of transoceanic databetween countries and continents.2 These cables providephysical links between the continents that enable our digital worldto function, and have been described by the United Nations as a'critical communications infrastructure' that is'vitally important to the global economy and the nationalsecurity of all states'.3 From a solely domesticviewpoint, these cables face a plethora of legal requirements asone follows the cable from the beachhead in any given country tothe ends of that country's territorial sea and beyond. Thereare multiple legal requirements at the national, provincial andlocal government levels that can regulate such cables, which anycable will face or need to satisfy. Installing such a cable canrequire in each country at the outset seafloor lease agreements,environmental clearance certificates, heritage certificates for theonshore landing and the near offshore maritime landing to ensurecultural heritage is preserved, maritime permits, land-use permits,and building permits. The ongoing maintenance for existing cablesruns a similar gauntlet and provides numerous grounds for potentialliability with the law of the coastal state applying to cablelandings and at least to the edge of the territorial sea. Cabledamage claims are by their nature multi-jurisdictional and requirea strategic approach to be taken by the parties involved and theirlawyers, bearing in mind the various jurisdictions potentiallyinvolved.

Where things can get complicated, however, is beyond thestate's territorial sea in instances where the cable passesthrough maritime zones that are disputed. Owing to theirinternational nature, submarine cables linking different countriesand continents inevitably cross multiple maritime zones in whichcoastal states may have jurisdiction or sovereign rights. Indisputed maritime areas, namely areas where one coastal state'sentitlement to a maritime zone overlaps with another coastalstate's entitlement to the same zone,4 submarinecables and activities that arise from them may therefore become asource of potential dispute. The question then arises as to whatone can do in the situation where a submarine cable passes throughdisputed waters.

This article focuses itself on these situations where a cablefinds itself in disputed maritime areas. It will first provide anoverview of submarine communication cables, and the legal regimethat applies to them under public international law. It will thenanalyse the scenario where submarine cables cross through disputedmaritime areas, and will set out where disputes that arise fromsuch situations can be addressed.

There are two main types of submarine cables: communicationcables and power cables.5 This chapter focuses on theformer. In short, a submarine communication cable consists of'a set of six to 24 glass fibers, an electrical conductor, aninternal steel strength member, and a protective sheath of marinegrade polypropylene, which are constructed to withstand harshenvironmental conditions for up to 25 years'.6 Inless technical terms, submarine cables are fibre optic cables nothicker than garden hoses, but that are built in a way that enablesthem to last for up to 25 years underwater, and to support the vastmajority of international telecommunicationsworldwide.7

These cables are typically laid on or buried within the seabed.In practice, this is done in two stages. First, an 'optimalcable route' is determined through surveys which take intoaccount landing sites, the seabed itself, the fishing routes, thecable and pipeline crossings, and boundaries with other coastalstates.8 Second, once the designated route is approved,cables are deployed by a trained crew on special, cable-layingvessels, which roll the cables out of holding tanks.9Depending on the route, the cable can either be buried beneath theseabed, or will be laid on the seabed itself (but usually only atdepths of more than 1,500 metres, that is, a depth that enablesless risk arising from human activities such as fishing oranchoring).10

The majority of countries now rely on submarine cables for theircommunication needs.11 To date, the global cable networkis composed of more than 430 cables,12 amounting to morethan 1.3 million kilometres of submarine communication cables, andcarries over more than 97 per cent of transoceanic data betweencountries and continents.13 There are no substitutes forthese submarine communication cables. By way of example, were thenetwork to disappear, the entire capacity of the Earth'ssatellite network could handle only 7 per cent of the data producedby the United States.14

Financially, submarine cables are essential. They carry anexcess of US$10 trillion a day of financial transfers,15and process some 15 million financial transactionsdaily.16 The Society for Worldwide Interbank FinancialTelecommunications (SWIFT) relies on submarine cables to sharefinancial data to 'more than 8,300 member financialinstitutions in 195 countries',17 and the USClearing House Interbank Payment System processes over US$1trillion a day to more than 22 countries.18Unsurprisingly, the staff director for management of the FederalReserve has highlighted the importance of submarine cable networks:'when the communication networks go down, the financial sectordoes not grind to a halt, it snaps to a halt.'19

As the United Nations Oceans and the Law of the Sea Report ofthe Secretary-General dated 9 September 2020 underscores, the abovenumbers have only intensified as a result of the covid-19pandemic.20 With an increase in the world's internettraffic of approximately 25 to 50 per cent, reliance on submarinecables is more important now than ever before:21

Reliance on submarine cables, whichcarry approximately 99 per cent of the world's Internettraffic, intensified by approximately 2550 per cent, asusage for communication, commerce, teleworking, telemedicine andtele-education expanded.

Functioning as a 'backbone of the internationaltelecommunications system',22 submarine cables aretherefore essential to the critical global infrastructure and playa direct role in the global economy.23

By their very nature, submarine cables cross a number ofmaritime zones over which various forums' international legalprovisions may apply. In light of this, it is essential tounderstand the international legal regime applicable to submarinecables.

There are four primary legal instruments that set out theinternational regime for submarine cables: (1) the 1884 Conventionfor the Protection of Submarine Telegraph Cables (the 1884Convention), (2) the 1958 Geneva Convention on the High Seas (nowsuperseded), (3) the 1958 Convention on Continental Shelf (nowsuperseded), and (4) the 1982 United Nations Convention on the Lawof the Sea (UNCLOS).

The earliest international law convention on submarine cables isthe 1884 Convention. It is a stand-alone convention that deals onlywith the protection of submarine telegraph cables, and has as itsmain goal that states adopt legislation that protects cables laying'outside territorial waters'.24 Of relevance,Article II sets out that it is a 'punishable offence' tobreak or injure a submarine cable wilfully or by culpablenegligence (with the caveat that this does not apply if this wasdone with the object of saving lives or a ship).25 InArticle XII, the signatories agree to implement nationallegislation to impose the penalties for violating thetreaty.26 The 1884 Convention presently has 36 stateparties.27

More recently, maritime law has played a crucial role in thelegal regime applicable to maritime cables. As the GenevaConvention on the High Seas and the Convention on the ContinentalShelf of 195828 were both superseded29 by the1982 UN Convention on the Law of the Sea (UNCLOS), the focus inthis article will be solely on the latter. One hundred and nineteenstates signed the UNCLOS, and it presently has 168 MemberStates.30 UNCLOS establishes legal regimes for theterritorial seas, the exclusive economic zone (EEZ), thecontinental shelf, and the high seas. Each of these regimesprovides states with rights and obligations relevant to the layingand maintenance of submarine cables in the different maritimeareas.

Starting first with the territorial seas, according to UNCLOSArticle 2, a coastal State's sovereignty will extend beyond itsland territory and internal waters to an adjacent belt of sea,described as the 'territorial sea'.31 Accordingto UNCLOS Article 3, territorial seas may not exceed 12 nauticalmiles from the coastal baseline.32

Within its territorial sea, a coastal state has rights andduties that are inherent in sovereignty. For example, UNCLOSArticle 21(1)(c) sets out that the coastal State is allowed toadopt laws and measures for the 'protection of cables andpipelines', which may limit innocent passage of vessels withinterritorial seas.33 Coastal states therefore haveextensive authority to regulate ships engaged in layingoperations.34

In light of the importance of submarine cables, countries haveestablished detailed regulations for any cable system that seeks toland in a state or to transit in its territorial sea.35For example, Australia, New Zealand, Uruguay, Colombia and Denmarkhave modern domestic laws in their national waters that establishprotected zones around international cables that land in thesecountries.36 In practice, coastal states will usuallyrequire permits, licences and environmental conditions to be metbefore permission is given to deploy submarine cables in thesemaritime zones.37

UNCLOS also creates a specific legal regime for the EEZ and thecontinental shelf, where coastal states will enjoy specificsovereign rights over the exploration and exploitation of naturalresources, but other states will still have the right to navigateand the freedom to lay and maintain submarine cables.38The EEZ regime is set out in Part V of UNCLOS, and the continentalshelf regime in Part VI of UNCLOS. As both maritime zones largelyoverlap, and as the rights set out in the EEZ regarding the seabedand subsoil are to be 'exercised in accordance with Part VI onthe continental shelf',39 the regimes for both theEEZ and the continental shelf will be addressed together in thebelow subsection.40

The EEZ regime is set out in Part V of UNCLOS, which recognisedthe rights of the coastal state to claim an EEZ up to 200 nauticalmiles from the territorial sea baseline,41 that givescoastal states sovereign rights to the exploration and exploitationof resources of 'the waters superjacent to the seabed and theseabed and subsoil' (which includes both non-living resourcessuch as oil and gas and living resources such asfisheries).42 Article 56 of UNCLOS sets out that a statealso has jurisdiction over (1) the establishment and use ofartificial islands, installations and structures, (2) marinescientific research and (3) the protection and preservation of themarine environment.43

With regard to the continental shelf, the legal regime is setout in Part VI of UNCLOS, which states that a coastal state hassovereign rights for the purpose of exploring the continental shelfand exploiting its natural resources (i.e., only non-livingresources),44 which consist of 'the mineral andother non-living resources of the seabed and subsoil, together with. . . organisms which either are immobile on or under the seabed orare unable to move except in constant physical contact with theseabed or the subsoil'.45 These rights areexclusive, in the sense that if the coastal state does not explorethe continental shelf or exploit its natural resources, no one mayundertake these activities without the express consent of thecoastal state.46 The continental shelf extends over 200nautical miles from the territorial sea baseline, and may(depending on qualifying geological criteria under UNCLOS) berecognised as extending beyond the 200 nautical miles boundary upto a maximum of 350 nautical miles (this is known as the extendedcontinental shelf (ECS)).47

UNCLOS has therefore two distinct legal bases (Part V and PartVI of UNCLOS) for rights over the seabed within 200 nautical miles.Article 56(3) of UNCLOS resolves this issue and provides that therights set out in the EEZ regarding the seabed and subsoil shouldbe 'exercised in accordance with Part VI on the continentalshelf'.48 For anything beyond 200 nautical miles,that is, in the ECS, the continental shelf regime appliessolely.

Both the regime of the EEZ and of the continental shelf are verysimilar with regards to submarine cables. The rights and freedomsof submarine cables on the EEZ and the continental shelf are setout in Articles 58 and 79 UNCLOS, respectively and as setout above, both regimes will apply simultaneously for rights overthe seabed within 200 nautical miles. First, UNCLOS affirms thatall states have the freedom to lay submarine cables in the EEZ(Article 58 of UNCLOS)49 and the continental shelf(article 79(1) of UNCLOS),50 and that coastal states'may not impede the laying or maintenance of suchcables'.51 The right of 'all States' to laysubmarine cables should not be read restrictively, as in practicemany submarine cables and pipelines are privately owned, and laidby private entities. The term therefore refers to the right ofstates and their nationals. Article 79 UNCLOS has been interpretedto mean that permits, taxes or fees imposed on internationaltelecommunication cables by coastal states outside of theirterritories are not authorised under UNCLOS.52 Layingsubmarine cables also includes the right to repair and maintainthem, both for the EEZ (article 58 of UNCLOS)53 and thecontinental shelf (implicitly accepted in Article 79(2) ofUNCLOS).54

However, the right to lay cables in the EEZ or continental shelfis not unlimited. States or companies conducting cable operationsin the EEZ or continental shelf must have due regard to the cablesor pipelines already in position and not prejudice the repair ofexisting cables (Article 79(5) of UNCLOS),55 as well asto the rights and duties of the coastal state in the EEZ and thecontinental shelf, to the extent that it overlaps with theEEZ.56 In particular, it has been underlined that these'rights and duties' correspond to rights over theexploration and exploitation of living and non-living resources,other economic resources such as the production of energy from thewater, currents and winds, jurisdiction over artificial islands,installations and structures, marine scientific research,protection and preservation of the marine environment,etc.57

In addition, Article 79(4) of UNCLOS expressly sets out anexception to the freedom to lay submarine cables in theEEZ/continental shelf when these cables are used 'in connectionwith the exploration of its continental shelf or exploitation ofits resources or the operations of artificial islands,installations and structures under itsjurisdiction'.58 In such a situation, the coastalstate will keep its jurisdiction over submarine cables. This is adirect consequence of a coastal state's sovereign rights overthe resources of the continental shelf or EEZ, and would appear toapply to submarine cables used to provide communications for oiland gas platforms and wind farms:59

The coastal state's jurisdiction over submarine cables underArticle 79(4) is a direct consequence of its sovereign rights overthe resources of the continental shelf or EEZ as well as over otheractivities for the economic exploitation and exploration of thezone (such as the production of energy from water, currents andwinds), and its jurisdiction over the establishment and use ofartificial islands, installations, and structures. This provisionwould appear to apply to submarine communications and power cablesused to provide communications for oil and gas platforms and windfarms.

Moreover, Article 58 UNCLOS sets out that States conductingcable operations in the EEZ (and the continental shelf to theextent it overlaps with the EEZ) 'shall comply with the lawsand regulations adopted by the coastal State in accordance with theprovisions of this Convention and other rules of international lawin so far as they are not incompatible with thispart'.60 The question here is to what extent acoastal state can regulate cable operations in the EEZ orcontinental shelf.61 Under Article 79(2) of UNCLOS,coastal states are permitted to impose reasonable measures 'forthe exploration of the continental shelf, the exploitation of itsnatural resources' and the 'prevention, reduction andcontrol of pollution from pipelines'.62 It isimportant to note here that the criteria is for the measures to be'reasonable'. Applied to the case of submarine cables(rather than pipelines), a coastal state could, therefore, subjectsubmarine cables to reasonable measures if this is for theexploration of the continental shelf, and for the exploitation ofits natural resources (as the issue regarding pollution appliesmore to pipelines than submarine telecommunicationcables).63 It has been argued (although as will bediscussed below this is not a universally shared view) thattelecoms cables are not involved in the exploration or exploitationof natural resources.64 Therefore, a coastal state wouldnot, for example, have the basis to impede the maintenance of cablesystems on the EEZ or continental shelf by imposing permits,delays, taxes, fees, custom duties or guard boatrequirements.65

Article 79(3) of UNCLOS also states that 'the delineation ofthe course for the laying of such pipelines on the continentalshelf is subject to the consent of the coastalState'.66 The wording of the clause implies thatwhile the delineation of the course of pipelines is subject to theconsent of the coastal state, the delineation of the course ofsubmarine telecoms cables are not. However, a state could rely onthe right to impose 'reasonable measures' for theexploration of the continental shelf and the exploitation of itsnatural resources as per Article 79(2) of UNCLOS as a legal basisto justify the delineation of the course for laying submarinecables.67 Finally, although the coastal state thereforemaintains some rights in the EEZ or continental shelf with regardto submarine cables, these remain strongly limited by Article 78(2)of UNCLOS, which highlights that 'the exercise of the rights ofthe coastal State over the continental shelf must not infringe orresult in any unjustifiable interference with navigation and otherrights and freedoms of other States as provided for in thisConvention.'

Finally, the UNCLOS sets out the legal regime for submarinecables in the high seas. Article 87(1)(c) of UNCLOS affirms thefreedom of the high seas, which includes the freedom for all states(and their nationals)68 to lay submarine cables, both onthe continental shelf as seen above (subject to restrictions justdiscussed),69 and beyond the continental shelf as perArticle 112(1) UNCLOS.70 This includes the possibilitiesof repairing existing cables.71

Although maritime zones appear to be clearly delineated by theUNCLOS, the reality is that there can be overlapping claims to amaritime zone. These overlapping claims generally arise from thecalculation of baselines from which the maritime zones aredelineated, and the different approaches taken by states in doingso. Overlapping claims are problematic to the countries involved asit creates ambiguity as to which one between them has the right toexploit the area such as through royalties or licence fees forsubmarine cables traversing the area, and this ambiguity canprevent international investors from investing in thearea.72

In the first instance, of course, states can negotiate asolution to their boundary dispute directly. International lawprovides some incentive for such a resolution as until the disputeis resolved, neither is to undertake activity in the area. Eachclaim of maritime boundary is legally valid, and each is thereforelegally entitled to claim the rights of exploration andexploitation in the disputed area.73 There exists apresumption in international law that in the absence of a'dividing line', each of the affected states will beentitled to claim the relevant rights in the area inquestion.74

In such a situation, international law provides that the statesinvolved are to agree an equitable solution. UNCLOS Articles 74(1)and 83(1) are identically phrased as follows:

The delimitation of the exclusiveeconomic zone [or 'the continental shelf'] between Stateswith opposite or adjacent coasts shall be effected by agreement onthe basis of international law, as referred to in Article 38 of theStatute of the International Court of Justice, in order to achievean equitable solution.

In the interim, UNCLOS provides that neither state is to takeany action that will prejudice the final delimitation. Articles74(3) (for the EEZ) and 83(3) (for the continental shelf) ofUNCLOS, are again identically worded in this regard:

Pending agreement as provided for inParagraph 1, the states concerned, in a spirit of understanding andcooperation, shall make every effort to enter into provisionalarrangements of a practical nature and, during this transitionalperiod, not to jeopardize or hamper the reaching of the finalagreement. Such arrangements shall be without prejudice to thefinal delimitation.75

What then of a forum for these disputes necessary to unlock theeconomic potential of these areas?

The traditional forum to whom one can submit disputes overborders or between states is of course the International Court ofJustice (ICJ),76 and the ICJ has entertained disputesover maritime delimitation before,77 primarily inrelation to oil and gas exploration. It was the ICJ to which Greeceaddressed its dispute with Turkey concerning the determination ofthe continental shelf boundary in the disputed area of the AegeanSea.78

While the ICJ remains an option, UNCLOS provides further optionsfor signatory states. According to Article 287 of UNCLOS, a stateis free to make a declaration indicating the means of settlement itchooses between the ITLOS, the ICJ, or an arbitral tribunal forgeneral disputes concerning the interpretation or application ofthe Convention and that do not belong to a more specificcategory.79 If the choices of the parties match, thenthe common choice will prevail.80 If not, then anarbitral tribunal will be constituted in accordance with Annex VIIof the UNCLOS. The Permanent Court of Arbitration at the Hague willusually be the institution that provides the arbitration servicesfor these Annex VII arbitrations. In fact, the PCA has served in'all but one of the UNCLOS Annex VII arbitrations todate'.81 Further, these procedures are compulsory,and parties shall submit the dispute to the court or tribunalhaving jurisdiction according to the UNCLOS provisions unless theyare able to resolve their dispute peacefully.

Other, specific categories of disputes are expressly attributedto ITLOS. The first specific category concerns provisional measurespending the constitution of an arbitral tribunal to which a disputeis submitted (which provisional measures can therefore be decidedby ITLOS).82 This could apply, for example, in thecontext of disputes relating to submarine cables in disputedmaritime areas when one state acts in a way which is seen tocontradict the obligation of mutual restraint set out in Articles74(3) and 83(3) of UNCLOS. A second specific category concerns theprompt release of vessels, which disputes must also be submitted toITLOS unless otherwise agreed by the state parties within 10 daysfrom the time of detention.83 One can foresee such apotential situation arising, for example, where a cable-laying shipis seized by one of the disputing countries. A final type ofdispute between states is set out in Article 288(2) of UNCLOS,which provides that the settlement mechanisms under UNCLOS can beextended to other conventions related to UNCLOS, for example otherdisputes relating to the law of the sea.84

For many states, compulsory jurisdiction as set out in UNCLOSwas only acceptable if certain issues were excluded fromit.85 However, the possibility of making reservationswas excluded since UNCLOS contains a general prohibition ofreservations in Article 309 of UNCLOS: 'No reservations orexceptions may be made to this Convention unless expresslypermitted by other articles of the Convention.'86 Acompromise was reached by enabling some flexibility in the rulesconcerning the settlement of disputes, set out in Articles 297 and298 of UNCLOS.87 Article 298 UNCLOS allows state partiesto exclude a limited number of categories of disputes from bindingdispute settlement by a declaration made by the parties toUNCLOS.88 These declarations may be made upon signature,ratification or accession to the UNCLOS or at any moment, and maybe withdrawn at any moment.89 They must be depositedwith the Secretary General of the United Nations.90 Asset out in Article 298 of UNCLOS, the state need simply declarethat 'it does not accept any one or more of the proceduresprovided for' with respect to specific categories ofdispute.91

There are three categories of exclusions listed in Article 298of UNCLOS, which must be 'interpreted narrowly anduniformly' because provided by the UNCLOS and not drafted bythe state parties:92 disputes relating to theinterpretation of articles concerning, inter alia, seaboundary delimitations; disputes concerning military activities;and disputes where the Security Council exercises functionsassigned to it by the UN Charter.93 Most states,including, for example, China, made declarations using the wholerange of exclusions.94 In light of the rule ofkompetenz-kompetenz, it is then a task for the selectedtribunal to appreciate whether the subject matter of the disputefalls within the authorised exceptions, and therefore the scope ofits own jurisdiction.95 It is important to highlightthat states will not be allowed to make exclusions that go beyondthe scope set out in Article 298 UNCLOS. For example, Russia made adeclaration excluding some matters from the compulsory settlementmechanism that went beyond the issues listed in Article 298 ofUNCLOS, in particular disputes 'concerning law enforcementactivities in regard to the exercise of sovereign rights orjurisdiction'.96 In the Arctic Sunrise disputebetween the Netherlands and Russia, the Tribunal scrutinised thisdeclaration and stated in its award that 'Russia'sDeclaration can only apply to an exception that is permitted underArticle 298.'97 Therefore, as far as the disputesconcerning law enforcement activities went, the only limits to theTribunal's jurisdiction resulted in the limits set out inArticle 297(2) and (3), contrary to Russia'sdeclaration.98

Article 297 of UNCLOS deals with disputes that may arise aboutthe way a coastal state exercises its freedoms andrights.99 Fortunately, Article 297(1) affirms theprinciple of the applicability of the compulsory procedures, inparticular in regard to 'the freedoms and rights of navigation,overflight, or the laying of submarine cables andpipelines'.100 This article therefore makesexpressly clear that disputes arising from the way a coastal stateexercises its sovereign rights relating to the laying of submarinecables shall be subject to the compulsory settlement mechanism inUNCLOS. Article 297(1) thereby gives the highest level ofprotection to the laying and maintaining of submarine cables, asdisputes relating to this subject matter will be subject to themandatory requirements of the dispute provisions inUNCLOS:101

[I]n the context of disputes ofcompeting uses in the EEZ, upon the continental shelf, or on thehigh seas, it is of special importance to recognize that the layingand maintaining of submarine cables enjoys the highest level ofprotection under the UNCLOS dispute resolution provisions wheresuch disputes with coastal States are subject to the mandatoryrequirements of these provisions.

Between 1969 and 2013, there were about 20 maritime boundarydisputes adjudicated before an international forum. Ten were beforethe ICJ, one was before ITLOS, two were Annex VII cases and sixproceeded before ad hoc arbitration panels. Of these cases, the ICJhas taken an average of five years and nine months to conclude,while the initial two UNCLOS Annex VII cases lasted between 26 and43 months, respectively. The only boundary case to have come beforeITLOS at that time took 27 months to conclude. Since 2014, therehas been at least one additional case before the ICJ, and onebefore ITLOS.

While in all cases, there is the issue of delimiting theboundary, the more interesting disputes and those likely to addressprivate actors most immediately, albeit indirectly, address theobligation of mutual restraint that each state has pursuant toArticles 74(3) and 83(3) of UNCLOS. To date, there have been threecases in which an international decision-making body has beencalled upon to adjudicate Articles 74(3) and 83(3). The first twowere Guyana v. Surinam, which was an arbitration takingplace under Annex VII. The second was Ivory Coast v.Ghana, which was heard by the Special Chamber of ITLOS in2017, and the third was Somalia v. Kenya, which proceededin the ICJ and was decided in October 2021. In each of theseinstances, the boundary was delimitated, and brought clarity to endthe dispute.

As such, international law provides for several forums forresolving potential disputes in contested maritime areas, albeitthe capacity to act in them has so far been limited to stateactors. Under customary international law, rights accrue not tonatural or juridical persons, but rather to their state ofnationality, which can enforce alone the rights through themechanism of diplomatic protection. A considerable body ofauthority supports the view that natural or juridical persons arenot themselves the holder of rights under customary internationallaw. As such, the default situation is that they may not invokethose rights against a given state unless specifically given thoserights, as well as jurisdictional consent by a State to be made thesubject of action. Nevertheless, these disputes have the ability toaffect private commercial actors engaged in activity in a disputedzone.

Given that UNCLOS provides that neither state is to take anyaction that will prejudice the final delimitation pursuant toArticles 74(3) and 83(3) of UNCLOS, the same forums are availablefor interim measures to prevent unilateral activity in suchdisputed areas. As one can expect, the economic and politicalimplications of delineating a line between two states involved areimmense. For some countries, the seabed resources 'could provecrucial to the well-being and political stability of coastalstates'.102 Moreover, maritime delimitation is aprocess that has been proven to betime-consuming.103

Accordingly, the pressure to take action before the resolutionof the dispute can thus be immense. This pressure was demonstratedin the situation between Guyana and Surinam. In the year 2000, anoil rig and drill ship of Guyana concessionaires were ordered toleave and escorted from the area by the Surinamese navy. Guyanainitiated arbitral proceedings on 24 February 2004, pursuant toArticles 286 and 287 and Annex VII of United Nations Convention onthe Law of the Sea (UNCLOS), with a decision coming only in 2007.That decision found that both parties had breached the others'rights under Articles 73(3) and 83(3) of UNCLOS for the actionsthey took prior to the final decision.104

Perhaps intending to avoid the same result where both partieswould be found having violated the Articles 73(3) and 83(3) rightsof the other as in Guyana v. Suriname, the parties inIvory Coast v. Ghana took a different approachwhen their delimitation dispute crystallised in a dispute in 2014.Thereafter, Ghana launched arbitration proceedings against theIvory Coast under Annex VII of UNCLOS in September2014.105 In February 2015, the Ivory Coast filed arequest for provisional measures with the Special Chamber, seekingan order directing Ghana to 'take all steps to suspend all oilexploration and exploitation operations under way in the disputedarea' pending delimitation of the maritime boundary. ITLOSissued its order on provisional measures in April 2015. It orderedthat no new drilling should take place in the disputed area pendingthe decision of the Special Chamber on the maritime boundary.However, it rejected the Ivory Coast's request that ongoingactivities also be suspended, because it considered that suchsuspension would 'entail the risk of considerable financialloss to Ghana and its concessionaires'.

Subsequent to ITLOS's April 2015 provisional order, Ghana,which had issued two concessions in the area, wrote to itsconcessionaire, and invited it to take appropriate steps to allowGhana to comply with its obligations. The subsequent cessation ofactivity was the subject of a force majeure claim betweenthe owner of a deep water semi-submersible drilling.106Consequently, while the legal proceedings involve states, therepercussions inevitably flowed down to private actors. The casewas finally decided in 2017, delimiting the maritime boundary anddismissing the Ivory Coast's claims against Ghana for violatingits Article 83(3) sovereign rights for its conduct in the interim,based at least in part on the discussions held between the partiesto resolve the dispute and Ghana having complied with theprovisional order. While no similar request for provisional reliefwas made in the more recent case involving Somalia and Kenya, theICJ in that case held that activity in a disputed zone does notviolate the other state's sovereign rights, even if the area isultimately allocated to the other.107

To date, the only jurisprudence over this issue arises in thecontext of oil and gas exploration. Whether a tribunal wouldsimilarly be persuaded to order provisional measures in the contextof submarine communication cables, as there is less likelihood ofphysical damage to the seabed or subsoil of the area under dispute,has not as yet been the subject of review. Indeed, the distinctionbetween activity that is manifestly prejudicial and irreparable andactivity that is not originates from the order of the ICJ in theAegean Sea Continental Shelf case of 1976 addressingGreece's request for interim measures pursuant to Article 41 ofthe ICJ Statutes. The court rejected the request on the basis thatexploratory activities conducted by Turkey are not likely to causea permanent effect as would drilling and the establishment ofinstallations.108 The tribunal in Ivory Coast v.Ghana in its preliminary ruling similarly prevented Ghana fromcarrying out any further drilling activity but did not order it tocease less intrusive activity such as seismic surveying, althoughit ordered Ghana to take all steps necessary to ensure theinformation gleaned could not be used the detriment of Ivory Coast,suggesting to some that the less intrusive acts could form thebasis for a violation of sovereignty albeit it not to the standardrequired for preliminary relief.109 Thus, althoughsubmarine cable installations are generally considered lessintrusive than other activities such as drilling and extraction,the activity, if carried out in disputed zones, may still be foundviolative of sovereign rights.

Submarine cables lie at the heart of our world'sinternational telecommunication systems and have become essentialto the modern society and economy. Owing to their internationalnature, submarine cables inevitably pass through differentinternational maritime zones, which at times may be disputed asbetween two states. In such event, a concessionaire of one of thestates may find itself in the middle, and the only real solution isto resolve the underlying issue, that is, launch a process ofdelimitation to assess to whom the disputed maritime area belongs.In the interim, international law provides that neither state is totake any action that would prejudice the final delimitation.Fortunately, there exist forums for the resolution of the moreintractable of such disputes, as well as jurisprudence, which isnow lending some degree of certainty to these circumstances.

Footnotes

1 Michael J Stepek is a partner at Winston & StrawnLLP and visiting scholar at the Center for Oceans and Coastal Law,University of Maine.

2 United Nations, 75th session, 9 September 2020,'Oceans and the law of the Sea Report of the SecretaryGeneral', paragraph 8, p. 3; 40th Edition of Subtel Forum'sSubmarine Cable Almanac, 2021, pp. 1617. FinancialTimes, 29 March 2021, 'Facebook to build submarine cableslinking US and Indonesia', Mercedes Ruehl. See also Blog of theEuropean Journal of International Law, 29 July 2020,'The Law of Maritime Neutrality and Submarine Cables',James Kraska; Lawfare, 21 November 2017, 'Cutting the Cord: TheLegal Regime Protecting Undersea Cables', Garrett Hinck;TeleGeography, Submarine Cable Frequently Asked Questions, lastaccessed on 22 March 2022; Catholic University Journal of Lawand Technology, December 2015, Volume 24, Issue 1,'Submarine Cables, Cybersecurity and International Law: AnIntersectional Analysis', p. 22, Tara Davenpart.

3 United Nations, General Assembly, 7 December 2010,65/37 Oceans and the Law of the Sea, pp. 3 and 21. See alsoCatholic University Journal of Law and Technology,December 2015, Volume 24, Issue 1, Submarine Cables, Cybersecurityand International Law: An Intersectional Analysis, Tara Davenpart,as well as Lawfare, 21 November 2017, Cutting the Cord: The LegalRegime Protecting Undersea Cables, Garrett Hinck.

4 UCL Journal of Law and Jurisprudence Vol.5(1), 2016, Oil and Gas Development in Disputed Waters underUNCLOS, Constantinos Yiallourides.

5 Catholic University Journal of Law andTechnology, December 2015, Volume 24, Issue 1, 'SubmarineCables, Cybersecurity and International Law: An IntersectionalAnalysis', Tara Davenpart, p. 60.

6 Catholic University Journal of Law andTechnology, December 2015, Volume 24, Issue 1, 'SubmarineCables, Cybersecurity and International Law: An IntersectionalAnalysis', Tara Davenpart, at p. 62.

7 Data Center Dynamics, 26 August 2021, 'What is asubmarine cable? Subsea fiber explained', Dan Swinhoe. See alsoTeleGeography, Submarine Cable Frequently Asked Questions, lastaccessed on 22 March 2022.

8 Subsea Cables Installation Procedures andMethods, KINGFISHER INFO. SERV.- OFFSHORE RENEWABLE & CABLESAWARENESS (accessed in March 2022); Catholic University Journalof Law and Technology, December 2015, Volume 24, Issue 1,'Submarine Cables, Cybersecurity and International Law: AnIntersectional Analysis', Tara Davenpart, p. 68.

9 Douglas Burnett et al., 'Submarine cables in thesargasso sea: legal and environmental issues in areas beyondnational jurisdiction' 10 (2015), p. 11.

10 Catholic University Journal of Law andTechnology, December 2015, Volume 24, Issue 1, 'SubmarineCables, Cybersecurity and International Law: An IntersectionalAnalysis', Tara Davenpart, at p. 69. Douglas Burnett et al.,'Submarine cables in the sargasso sea: legal and environmentalissues in areas beyond national jurisdiction' 10 (2015), pp.1011.

11 Catholic University Journal of Law andTechnology, December 2015, Volume 24, Issue 1, 'SubmarineCables, Cybersecurity and International Law: An IntersectionalAnalysis', Tara Davenpart, p. 63.

12 40th Edition of Subtel Forum's Submarine CableAlmanac, 2021, pp. 1617.

13 TeleGeography, Submarine Cable Frequently AskedQuestions, last accessed on 22 March 2022; United Nations, 75thsession, 9 September 2020, Oceans and the law of the Sea Report ofthe Secretary General, Paragraph 8, p. 3.

14 US Chamber of Commerce (2012) Statement of the USChamber of Commerce on Hearing on the United Nations Law of the SeaConvention, p. 7.

15 Catholic University Journal of Law andTechnology, December 2015, Volume 24, Issue 1, 'SubmarineCables, Cybersecurity and International Law: An IntersectionalAnalysis', Tara Davenpart, at p. 63; Michael Sechrist, NewThreats, Old Technology: Vulnerabilities In Undersea CommunicationsCable Network Management Systems 9 (Harv. Kennedy Sch., Belfer Ctr.for Sci. & Int'l Affs., Discussion Paper No. 2012-03,2012); Policy Exchange, 2017, Undersea Cables, Indispensable,Insecure, Rishi Sunak MP, p. 5.

16 Michael Sechrist, New Threats, Old Technology:Vulnerabilities In Undersea Communications Cable Network ManagementSystems 9 (Harv. Kennedy Sch., Belfer Ctr. for Sci. & Int'lAffs., Discussion Paper No. 2012-03, 2012), at p. 9.

17 Catholic University Journal of Law andTechnology, December 2015, Volume 24 Issue 1, 'SubmarineCables, Cybersecurity and International Law: An IntersectionalAnalysis', Tara Davenpart, at p. 63; Michael Sechrist, NewThreats, Old Technology: Vulnerabilities In Undersea CommunicationsCable Network Management Systems 9 (Harv. Kennedy Sch., Belfer Ctr.for Sci. & Int'l Affs., Discussion Paper No. 2012-03, 2012)at p. 10.

18 Michael Sechrist, New Threats, Old Technology:Vulnerabilities In Undersea Communications Cable Network ManagementSystems 9 (Harv. Kennedy Sch., Belfer Ctr. for Sci. & Int'lAffs., Discussion Paper No. 2012-03, 2012), p. 10.

19 Martinus Nijhoff Publishers, 2014, Submarine Cables,The Handbook of Law and Policy, Introduction - Why SubmarineCables? Douglas Burnett, Tara Davenport and Robert Beckman,page 2, citing S Malphrus, Board of Governors of the FederalReserve System, First Worldwide Cyber Security Summit, EastWestInstitute, Dallas, Texas, 35 May 2010.

20 United Nations, 75th session, 9 September 2020, Oceansand the law of the Sea Report of the Secretary General, Para. 8, p.3.

21 United Nations, 75th session, 9 September 2020, Oceansand the law of the Sea Report of the Secretary General, Para. 8 p.3.

22 United Nations General Assembly, A/70/74, 30 March2015, Para. 55 p. 18.

23 United Nations General Assembly, A/70/74, 30 March2015, Para. 55 p. 18.

24 Catholic University Journal of Law andTechnology, December 2015, Volume 24 Issue 1, 'SubmarineCables, Cybersecurity and International Law: An IntersectionalAnalysis', Tara Davenpart, at p. 67; 1884 Convention, ArticleI.

25 1884 Convention, Article II.

26 1884 Convention, Article XII.

27https://cil.nus.edu.sg/databasecil/1884-convention-for-the-protection-of-submarine-telegraph-cables/

28 The 1958 Geneva Convention on the High Seas and the1958 Geneva Convention on the Continental Shelf.

29 UNCLOS, Article 311(1).

30https://www.un.org/Depts/los/reference_files/chronological_lists_of_ratifications.htm.Please note that the United States has not ratified UNCLOS.However, President Reagan's 1983 United States Ocean PolicyStatement said that the US would follow the provisions of UNCLOSrelating to 'balance of interests relating to the traditionaluses of the ocean'.

31 UNCLOS, Article 2.

32 UNCLOS, Article 3. See also International SubmarineCables and Biodiversity of Areas beyond National Jurisdiction, theCloud Beneath the Sea, 2017, Douglas R Burnett and Lionel Carter,p. 14; Catholic University Journal of Law and Technology,December 2015, Volume 24 Issue 1, 'Submarine Cables,Cybersecurity and International Law: An IntersectionalAnalysis', Tara Davenpart, at p. 76.

33 UNCLOS, Article 21(c). See also InternationalSubmarine Cables and Biodiversity of Areas beyond NationalJurisdiction, the Cloud Beneath the Sea, 2017, Douglas RBurnett and Lionel Carter, p. 14.

34 The Handbook of Law and Policy, Douglas RBurnett, Robert Beckman and Tara Davenport, p. 140.

35 International Submarine Cables and Biodiversity ofAreas beyond National Jurisdiction, the Cloud Beneath the Sea,2017, Douglas R Burnett and Lionel Carter, p. 14.

36 International Submarine Cables and Biodiversity ofAreas beyond National Jurisdiction, the Cloud Beneath the Sea,2017, Douglas R Burnett and Lionel Carter, p. 14.

37 Catholic University Journal of Law andTechnology, December 2015, Volume 24, Issue 1, 'SubmarineCables, Cybersecurity and International Law: An IntersectionalAnalysis', Tara Davenpart, p. 76.

38 International Submarine Cables and Biodiversity ofAreas beyond National Jurisdiction: The Cloud Beneath the Sea,2017, Douglas R Burnett and Lionel Carter, p. 15.

39 UNCLOS, Article 56(3).

40 The relevant UNCLOS articles on the EEZ and thecontinental shelf are Articles 56, 58, 78 and 79.

41 UNCLOS, Article 57.

42 UNCLOS, Article 56. See also Catholic UniversityJournal of Law and Technology, December 2015, Volume 24 Issue1, 'Submarine Cables, Cybersecurity and International Law: AnIntersectional Analysis', Tara Davenpart, p. 72.

43 UNCLOS, Article 56. See also Catholic UniversityJournal of Law and Technology, December 2015, Volume 24, Issue1, 'Submarine Cables, Cybersecurity and International Law: AnIntersectional Analysis', Tara Davenpart, p. 72.

44 UNCLOS, Article 77(1).

45 UNCLOS, Article 77(4).

46 UNCLOS, Article 77(2).

47 UNCLOS, Article 76.

48 UNCLOS, Article 56(3). See also CatholicUniversity Journal of Law and Technology, December 2015,Volume 24 Issue 1, 'Submarine Cables, Cybersecurity andInternational Law: An Intersectional Analysis', Tara Davenpart,at p. 72.

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