INTERNATIONAL CRIMINAL LAW OF THE SEA
4.3 OFFENCES AGAINST SUBMARINE CABLES AND PIPELINES
The era of submarine transmission cables was launched in 1850 when the first telegraph cable was laid across the English Channel, connecting England with France.
Within days, however, a French fisherman who had stumbled upon it proceeded to carve it assuming he had discovered a peculiar seaweed. Although a boom in the laying of submarine cables followed, it was not untilAugust 1858 that a third attempt
39 IMO Doc MSC/Circ 622/Rev 1 (16 June 1999).
40 Ibid.
41 The International Telecommunications Union and INMARSAT have included ‘piracy/armed robbery attack’ as a category of distress message which ships can now transmit through either their digital selective calling or INMARSAT equipment by pressing a button. The message can be received automatically by shore stations and ships in the immediate vicinity. See IMO Doc MSC/Circ 805 (6 June 1997);op cit,the 2002 ICC Piracy Report, note 1, mentions a newly introduced device, called
‘Secure-Ship’, which consists of a 9,000 volt, non-lethal electrifying fence surrounding the ship, specifically adapted for maritime use.
42 PT Bangsberg, ‘Gurkhas Offered for On-board Protection’ (2000)Journal of Commerce Online,28 January.
to lay the first trans-Atlantic cable was crowned with success. The cable was operational for only a month and it was in 1866 that the first enduring trans-Atlantic cable was finally laid. For a period of 30 years since the 1920s, radio carried the bulk of the globe’s communications, but was unreliable in adverse weather conditions and had a limited capacity. The development in the 1950s of a lightweight co-axial cable, which was reinforced with a high-tensile steel core and a polythene outer skin, meant that it did not require armouring in deep water. Since the first fibre optic submarine cable was laid in the 1980s, underwater cables have overtaken satellites as the leading means of overseas communication. Cables now carry more than two- thirds of all telephone, fax and data transmissions crossing oceans, with over 150,000 miles of fibre optic cable already laid on the seabed, and rapidly increasing.43
The general freedom to lay submarine cables beneath the high seas and on the seabed thereof is expressly recognised under UNCLOS,44as well as its predecessor, the 1958 Geneva Convention on the High Seas,45and was acknowledged as such under customary international law prior to the 20th century. No such freedom exists with regard to another State’s territorial sea and internal waters, or, indeed, in archipelagic waters in accordance with Art 51 of UNCLOS, except with the coastal State’s consent. For the purposes of legal protection, two types of submarine cable exist: ‘transterritorial’ systems, which transcend the oceans and are, therefore, deployed on the high seas and ‘festoon’ systems, which are laid along several coastlines and, thus, are in large part contained in territorial or internal waters. The 1884 Convention for the Protection of Submarine Cables (1884 Convention),46which has not been superseded by other instruments and is still the basis for most national statutes, was adopted to suppress, punish and compensate breaking or injury to cables outside of territorial waters. Article 2(1) of the 1884 Convention made it a punishable offence to:
…wilfully or through culpable negligence, [commit any act] resulting in the total or partial interruption or embarrassment of telegraphic communication.
In accordance with Art 2(2) of the 1884 Convention, any injuries to cables inflicted with the sole purpose of saving one’s life or vessel, after all necessary precautions have been taken to avoid such occurrences, lift the criminal character of the act.47 The application of Art 2(1) extends also to cable owners, presumably through the actions of their agents, who wilfully or negligently break or injure another cable while laying or repairing their own.48Both the 1958 Geneva Convention on the High Seas49and UNCLOS50encapsulated theactus reusandmens reacontained in Art 2(1)
43 See HM Field,The Story of the Atlantic Telegraph,1972, New York: C Scribner; LB Tribolet,The International Aspects of Electrical Communications in the Atlantic Area,1929, Baltimore: John Hopkins University; see International Cable Protection Committee website: www.iscpc.org.
44 UNCLOS, Arts 87(1)(c) and 112. Art 58 further extends this freedom to the EEZ, although strictly speaking this does not form part of the high seas.
45 Geneva Convention on the High Seas, Arts 2(3) and 26(1).
46 1 Bevans 89.
47 Similarly, 1958 Geneva Convention on the High Seas, Art 27 and UNCLOS, Art 113.
48 1884 Convention, Art 4, 1958 Geneva Convention on the High Seas and UNCLOS, Arts 28 and 114 respectively, removed reference to criminal liability in such cases, but this should not be viewed as absolving them of such if they act wilfully or negligently.
49 Ibid,1958 Convention, Art 27.
50 UNCLOS, Art 113.
of the 1884 Convention and extended it to cover also submarine pipelines and high- voltage power cables. Significantly, Art 113 of UNCLOS features an additional sentence, whereby it penalises not only wilful commission and negligence, but also
‘conduct calculated or likely to result in such breaking or injury’.51
Unlike piracyjure gentium,which too, is an offence committed on the high seas, judicial jurisdiction for injuries to submarine cables underArt 8 of the 1884 Convention and, indeed, customary law, is not universal but belongs to the Flag State, or that of the nationality of the offender, in cases where the Flag State is unable to act.52The same is true with respect to Art 113 of UNCLOS. Article 10(2) of the 1884 Convention makes a minor departure from the rule of exclusive enforcement jurisdiction of the Flag State on the high seas, by granting the limited right to other States parties to approach but not board suspected vessels in order to determine their nationality.53Both the British Submarine Telegraph Act 1885,54and the US Submarine Cable Act 1888,55enacted to implement the 1884 Convention, reproduce almost verbatim the elements of the offence, as well as its jurisdictional clause under the Convention. The light penalties provided in the British and US statutes, which have remained the same since their enactment, may well account for the lack of criminal prosecutions and reluctance to engage in costly financial litigation with little benefit on the horizon.
In time of armed conflict, although it is permissible to sever the adversary’s submarine cables,56it is prohibited to seize or destroy submarine cables connecting an occupied territory with a neutral State, except in situations of absolute necessity.57 In a case tried by a British-American Claims Arbitral Tribunal in 1923, a British corporation claimed compensation for repairs incurred in repairing the Manila-Hong Kong and the Manila-Cadiz submarine telegraph cables cut by the US naval authorities during the Spanish-American War in 1898. The tribunal dismissed the claim by stating that not only was the cutting of cables not prohibited by the rules of international law applicable to warfare at sea, but ‘such action may be said to be implicitly justified by that right of legitimate defence which forms the basis of the rights of any belligerent nation’.58
Protection and prosecution of cases involving injury to submarine cables and pipelines is dependent on each individual State, both by application and adaptation of domestic statutes to contemporary exigencies, as well as by international co- operation and rigid police enforcement action. State action has unfortunately proven
51 InaSupplementaryDeclarationtothe1884Convention,signedin1886,thepartiestotheformerconstrued the term ‘wilfully’ contained in Art 2(1) of the 1884 Convention as not imposing penal responsibility ‘to cases of breaking or of injuries occasioned accidentally or necessarily in repairing a cable, when all precautions have been taken to avoid such breakings or damages’. Reprinted in 1 Bevans 112.
52 MS McDougal and WT Burke,The Public Order of the Oceans: A Contemporary International Law of the Sea,1962, New Haven: Yale UP, p 1079.
53 See RR Churchill and AV Lowe,The Law of the Sea,1999, Manchester: Manchester UP, p 175.
54 Chapter 49, ss 3, 6(5).
55 47 USC §§ 21, 22, 33.
56 1884 Convention, Art 15.
57 1907 Hague Regulations, Art 54.
58 Eastern Extension, Australasia and China Telegraph Co Ltd Claim(1923–24) 2 AD 415, p 417; see also Cuba Submarine Co Ltd Claim(1923–24) 2 AD 419, p 419, whose facts and judgment were similar to the previous case.
inadequate. For this purpose an International Cable Protection Committee (ICPC) was established in 1958 by cable owners with the purpose of promoting the protection of submarine cables against natural and man-made hazards. Since the largest threat to cables is encountered from fisheries activities, especially trawl fishing and shellfish dredging, the ICPC has issued and distributed cable warning and cable awareness charts, as well as notices to mariners, and has developed standard procedures for activities such as cable routing and cable/pipeline crossing, in an effort to foster cable awareness in the fishing and offshore industries.