Links that Connect Us - Protecting Submarine Cables
There is little awareness of submarine cables. Facts such as cables resting on the ocean beds of the world, communicating massive amounts of data across oceans, are privy only to the ears of people involved in the industry one way or another. Lack of awareness of cables is not only a problem for India, but also for the international society of nations at large. Submarine cables are unseen and unsung networks of cables embodying itself to the ilk of the nervous system of humans. Submarine cables are responsible for transferring messages, a function akin to veins and nerves of the human body. Multiplicity of these nerves is responsible for linking countries together.
Submarine cables have been common practice since 1850. But only in 1988, developments took place in the form of fiber-optic submarine cables. Resultantly, technology-enabled, reliable and high-quality transmission of vast quantities of information travelled across oceans silently and smoothly. This technological leap coincided with the development of the Internet in 1991. The two technologies supported and supplemented each other and revolutionized communications. We now use submarine cables to effortlessly transfer 95 per cent data of international telecommunications of the universe.
There is no doubt that our dependence is destined to grow on the ocean-bed-ridden cable network. There have been alternative practices to switch to balloons to provide signals in areas, where network towers are scarce. All such attempts have been in vain. Therefore, furthering our reliance on cables, it is the devil or the deep sea. Nonetheless, the lacuna, it is a savior.
There is a deep cleavage with cables and their usage, on one side and, their awareness and protection as the other. Submarine cables are vulnerable to a wide variety of threats, including natural disasters, shipping, and deep sea fishing activities. The damage caused to cables takes ages to repair. Some repair bills run into the millions. There lies another enormous danger—that of geopolitical maneuvering and strategic warfare personifying asymmetric warfare techniques. Hidden risks are unknown.
The possibility of terrorist acts, damaging submarine cables by causing deliberate harm to sabotage a key node or portion of these cables, is a threat to national security. Such actions can damage countries, and even whole regions could suffer massive economic losses, social disruptions, and compromise national security. Such concerns were reinforced by the WikiLeaks disclosure, describing submarine cables outside the 'critical foreign dependencies', whose loss could significantly impact US security and the economy. Despite the critical nature of submarine cables, there are many gaps in their protection. It is akin to a bull in a china shop story.
Many States have not enacted any laws, or some who have enacted legislation, but not acted upon it to protect cables within their territorial seas, are in unchartered waters. Submarine cables, by their very nature, are without borders. According to provisions of UN Convention on the Law of the Sea, 1982, States are required to adopt legislation that criminalizes the willful or negligent breaking or injury of under-water submarine cables beneath the surface, by ships flying their flags, for liability by anyone, subject to their jurisdictions. However, State parties to the Convention have not yet implemented their obligation. Moreover, the Convention only requires States to exercise jurisdiction over their flag vessels or nationals that damaged cables. As witnessed by history, given that damage to submarine cables could affect multiple States, any State which has custody over perpetrators should be under an obligation to prosecute or extradite them. This obligation has been recognized in all counter‐terrorism legal instruments. A new international maritime jurisprudence is in the making.
Government interest in submarine cables is usually limited to competition and licensing issues for telecommunications companies. India, and its legislation, or rather, the lack of it is a testimony to that. Unlike vessels, there is no national registry for submarine cables and no State has jurisdiction over cables. Additionally, there is no international agency responsible for submarine cables. The International Telecommunications Union is the UN agency overseeing information and communication technology issues. However, it has dealt primarily with standards in telecommunications. The International Cable Protection Committee, on the other hand, deals with the protection of submarine cables. However, it is a non‐governmental organization consisting of cable companies. Similarly, within national governments, there is often no lead agency responsible for submarine cables. Given these gaps, States must express positive legislative discussion, form a consensus on the need to protect cables in an international forum for their and others’ benefit. Law must catch pace. The submerged cables must not go adrift, but navigate on a chartered course.
***The views expressed herein do not necessarily represent the opinions of JTMS or Yonsei Institute for North Korean Studies. Ankit Malhotra is a pupil of Law at the Jindal Global Law School at O.P Jindal Global University. firstname.lastname@example.org