Alessandro Consonni (Italy)
The legal maze on submarine cables
In this particular lapse of time, where the “Internet of Things” is gaining ground and technologies to exploit offshore energy are breaking new ground, submarine cables are one of the most critical infrastructures to protect. Sure enough, they encompass key questions for geopolitics - ranging from connectivity to regulatory issues - but, what is more, global security governance strongly depends on their resilience as well as protection. What happened just a few months ago during the Ukraine-Russia war, with the attacks on the Nord Stream gas pipelines, must be a warning to the International Community. There are several threats to submarine cable networks, among which the most destructive are the acts of sabotage, in order to cripple the state economy and data theft through spying attempts.
Having said that, however, ensuring the safety of submarine cables is quite complicated and states have to choose just between three options: the regulatory approach, the military one, or the redundancy strategy. If the permanent deployment of warships as well as military submarines for patrolling international and territorial waters, above all in high-sea areas, is still too expensive, the international legal framework concerning the laying activities of submarine cables on the ocean floor is a murky system. It is made of two major legislative texts, namely the 1982 United Nations Convention on the Law of the Sea (UNCLOS) and the 1884 Convention for the Protection of Submarine Telegraph Cables, that all too often overlap. A good illustration of this is the marine renewable energy installations.
Although the UNCLOS leaves no doubt about the allocation of jurisdiction on energy installations in the territorial sea, continental shelf, and exclusive economic zone (artificial islands, installations, and structures for the purposes provided for in Article 56 and other economic purposes included), the situation gets more complicated one gradually moves from the shore and reaches the high seas and the deep seabed area. The provisions enshrined in the UNCLOS, when it comes to energy installations on the high seas, opt for the first-come-first-served basis as a ground rule to settle disputes which is unacceptable if we look at the technology making progress in leaps and bounds. Furthermore, it is bewildering that the relevant legislation on the pipelines is still the outdated 1884 Paris Convention, first and foremost considering that today we use pipelines completely different from the unobtrusive telegraph cables hidden in the sand. For all those reasons, generally speaking, the best choice should be to opt for redundant cabling: each country should be connected to the outside through multiple submarine cables in order to minimize the possible negative effects - social and economic - in the unfortunate event of malfunction or destruction of individual cables.
Even though the subsea data connectivity sector has always been under US control, China - especially since President Xi Jinping came to power - has rapidly made its way into this industry thanks to the 2015 “Digital Silk Road” and the “China Manufacturing 2025” plan. Between these two international superpowers, there is also the European Union which has identified four main platforms for connectivity through submarine cables: the Atlantic, the Mediterranean, the North Sea, the Arctic as well as the corridor from the Baltic to the Black Sea. EU member states, through the adoption of the “EU Global Gateway” and the “Digital Connectivity Gateways” strategies, intend to carry out various intercontinental connection projects, the most important of which is undoubtedly the digital highway BELLA, the first direct cable between Europe and South America. Taking everything into consideration, since the ocean floors around the world are crossed by hundreds of cables - undersea fiber optic cables networks carry around 95 percent of international communications and data traffic - but up to now there has been no real content-based consensus on an up-to-date supranational legal framework for their protection, a rapid change, of course, is required.