coastal state encroachment on high seas submarine cable ...€¦ · conference 2016 15-16 april...

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© 2006-2016 International Cable Protection Committee Ltd

Coastal State Encroachment on High Seas Submarine Cable Freedoms

3rd Hamburg International Environmental Law Conference 201615-16 April 2016

Hamburg, Germany

Douglas R. BurnettInternational Law AdvisorInternational Cable Protection CommitteePartner, Transportation, Shipping and Logistics Practice GroupSquire Patton Boggs (US) LLP

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Submarine Cables –is the Cloud under the sea?

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Submarine Cables; Driving the Demand……..

Source: IBM

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The Growing Data Centres

Sources – each company website4

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“Cyberspace, in the physical form of undersea fiber-optic cables, carries an even greater value for trade [than shipping goods] through financial transactions and information.” Greenleaf and Amos, “A New Naval Era” U.S. Naval Institute Proceedings, June 2013, at 17

Courtesy WFN Strategies

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98% Of All International Voice, Data, Video, and Internet Traffic Is On Submarine Cables

Each day the Society for Worldwide Interbank Financial Telecommunications (SWIFT) transmits about 15 million messages to more than 8300 banking organizations, securities intuitions, and corporate customers in 208 countries. The United States Clearing House for Interbank Payment System (CHIPS) process over USD 1 Trillion per day to more than 22 countries for all manner of commodity exchanges, investments, and securities.

“Functioning as the backbone of the international telecommunications system, submarine cables are a fundamental component of the critical global infrastructure and play a direct role in sustainable industrialization: indirectly they contribute to all other areas recognized for sustainable development.” Oceans and the law of the Sea, Report of the Secretary-General, A/70/74, 30 March 2015

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“When the communication [cable] networks go down, the financial sector does not grind to a halt, it snaps to a halt.” Malphrus, Board of Governors of the Federal Reserve, 3-5 May 2010.

Seven facts policy makers need to know:1. There is no single global submarine network any more than there is a single world airline network (about 236 cable systems = 997,336 KM).2. Cable systems are generally owned by consortia of 4-30 private companies or on occasion a single company-About 99% are non-government owned. Cable systems are not “flagged” to any one State.3. Cable repair is organized regionally by private contract-not by government

mandate. Contracts require repair ships to sail within 24 hours; GOAL = FAST RESPONSE.

4. There are about 59 cable ships in the world, about half are on stand-by and half laying new cables or other tasks(training, maintenance)5. Cable ships are expensive, custom built, conspicuous, require specialized crews, and fly diverse flags (UK, France, Marshall Islands, Singapore, Japan, China, Korea, UAE, Indonesia)=COMPETITIVE RATES + EFFICIENCY6. Cable repairs are urgent not only to restore service, but because each cable acts as the backup for other cables=RESILIENCY7. Cables have a neutral to benign environmental footprint on the seabed

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Copyright International Cable Protection Ltd. All rights reserved. Use, disclosure, or distribution of this material to any unauthorized person or third party without the written permission of ICPC Ltd.

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United Nations Convention on the Law of the Sea (1982) The preamble of UNCLOS state, in part:

Recognizing the desirability of establishing through this Convention, with due regard to the sovereignty of all States, a legal order for the seas and oceans which will facilitate international communication…

The official position of the UN on this issue: “Beyond the outer limits of the 12NM territorial sea, the coastal

State may not (and should not) impede the laying or maintenance of cables, even though the delineation of the course for laying of pipelines [not cables] on the continental shelf is subject to its consent”

Response to Question #7, Frequently Asked Questions at UN website: www.un.org/Depts/los/LEGISLATIONANDTREATIES/frequently_asked_questions.htm

“If it is not broke, don’t fix it!”

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http://www.un.org/Depts/los/LEGISLATIONANDTREATIES/frequently_asked_questions.htm

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Comparison of Telecom and HVDCCables on High Seas/ABNJ/BBNJ

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Comparison of Telecom and HVDCCables on High Seas/ABNJ/BBNJ

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OSPAR and the high seas OSPAR is the OSlo and PARis Conventions for Protection

of the Marine Environment of the North-East Atlantic

State representatives are from ministries of environment

Treaty signed in 1992, entered into force in 1998, currently 15 State parties + EU http://www.ospar.org/content/content.asp?menu=00340108070000_000000_000000

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UNCLOS and Domestic Laws Implementing OSPAR Guidelines Domestic laws of OSPAR Contracting Parties

implementing the 2012 Guidelines on BEP in Cable Laying and Operation for fibre optic telecommunications cables are not be consistent with UNCLOS

Such laws are likely to interfere with the freedom of other States to lay and repair cables on the high seas and on the continental shelf and show lack of “due regard” for other States (No notice and no consultation).

Laying and repair of cables are not “pollution of the marine environment” as defined in UNCLOS

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Pollution of the Marine EnvironmentUNCLOS Article 1:

"pollution of the marine environment" means

the introduction by man, directly or indirectly, of substances or energy into the marine environment, including estuaries,

which results or is likely to result in such deleterious effectsas harm to living resources and marine life,

hazards to human health,

hindrance to marine activities, including fishing and other legitimate uses of the sea,

impairment of quality for use of sea water and

reduction of amenities;

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Assessment of Potential Effects of Cable Laying/Repair Activities Under Art. 206, assessment only required when following conditions are present:

“Reasonable grounds” for believing activity will cause “substantial pollution” or “significant and harmful changes to the marine environment.”

Activity musts be under the State’s jurisdiction.

Assessment must be “practicable.”

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THE OSPAR APPROACH OSPAR issued Guidelines on Best Environmental Practice

(BEP) in Cable Laying and Operation (Agreement 2012-2) in June 2012. (“BEP Guidelines”)

Covers all off-shore power cables and telecom cables in OSPAR region, including EEZ and high seas!

OSPAR never consulted beforehand any telecom or power cable owners or operators or industry groups such as CIGRE or ICPC.

OSPAR said States where to individually consult with national telecom and power companies, but none did.

Scientific basis for guidelines is weak-largely based on the work of a German scientist from experiences in the Wadden Sea. (no high seas experience & no consultation)

Legal basis appears to be weak as well because of conflicts with the United Nations Law of the Sea Convention (UNCLOS) and its provisions for the freedom to lay and maintain cables outside of territorial seas and due regard.

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BEP GUIDELINES USES PERCEIVED LACK OF EVIDENCE TO JUSTIFY REGULATIONS

Emphasis on oil leak risks from power cables even though since the 1990’s modern ocean power cables use mass impregnated paper or XPLE (cross linked polyethylene) for insulation.

Claims modern cable installation techniques like burial may have a “lethal” effect on some species.

Cites lack of knowledge of but ignored extensive peer reviewed and published research.

Heavy reliance on an apparent lack of data or knowledge to justify regulations under the precautionary principle.

Ignores the over 166 years of lawful use of cables in the ocean that have never led to the loss or irreversible decline of a single species. (1811 – First Submarine power cable; 1850 – First submarine telecom cable).

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BEP GUIDELINES THAT DEPART FROM PRACTICABLE REALITY

EIA Required For All Cables and emergency repairs without regard to Art. 206. Mitigation In The Form Of Compensation (a new high seas tax?) Bundling Of Existing Cables And Pipelines (increases pollution risks) Cable Route Selection Based On Avoiding Habitats Of Species Sensitive To Physical

Disturbance (No base line survey or data in ABNJ/BBNJ) Horizontal Drilling Favored To Avoid Damage (No cable burial in ABNJ/BBNJ) Mattresses Should Be Made Of Natural Stone. (crossings rare and natural stone not practicable

at ABNJ/BBNJ depths) Remove Vegetation Before Laying And Replant After Laying (Not practicable at ABNJ/BBNJ

depths) No Blasting With Explosives As A Burial Techniques (Pure fiction-where did this come from?) Burial Required To Depth Of 1-3 Meters To Reduce Heat Impacts (cables not buried on high

seas) Cables Should Be Removed After They Are Out Of Service (increase harmful impacts to marine

environment and is not State or industry practice) The “2 K” requirement is scientifically invalid as work by Dr. Christian Mueller shows:

(“Reassessment of the 2K Criterion in the Light of Measured Thermal Data and Modeling”) No Cost Benefit Analysis

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Recycled out-of-service submarine telecommunication cables provide marine habitat for fish and mussels in the Ocean City Reef Foundation project under the auspices of the state of Maryland in the United States. The donated cable was fashioned into bundles and laid on the seabed in about 34 m of water some twelve years ago. (Photograph courtesy of Rick Younger, OCRF)

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Submarine Cables Future? Bright, providing UNCLOS provisions* on submarine cables remain.

Socio-economic benefit examples? Will change face of education allowing universities to offer courses worldwide. Underpin global monitoring of the marine environment for change, hazards and knowledge.

Cradle to grave carbon footprint of an international cable system is about 7 grams of carbon dioxide equivalents for every 10,000 gigabit kilometer

Compare 2 day video conference NY to Stockholm (5.7 kg of CO2) with an equivalent 2 day face to face meeting (1920 kg CO2)

3-D printing will reduce the amount of aircraft flights and shipping voyages-and their carbon input into the atmosphere/ocean, but the blueprints, software, payments that will allow this new process to work will depend upon cables

*Articles 21, 51, 58, 79, 87, 112-115 and 297

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Conclusions1. 2012 OSPAR Guidelines on BEP in Cable Laying and

Operation are not consistent with ICPC/UNEP study and peer review science and States who implement them on others may be in breach of UNCLOS. Submarine cables and MPA’s are not mutually exclusive.

2. Trends of creeping jurisdiction based on poor science may mean loss of freedom to lay and repair cables and innovation that are historical keys to the cable industry’s contribution to a better world. Who will be in charge of the oceans? Will the OSPAR regime model improve or hinder the world’s critical submarine cable infrastructure?

3. The better approach is working the cable industry stakeholders through workshops, joint research and peer review studies. The cable industry has proven with Sargasso Sea Alliance and International Seabed Authority that this is a more productive approach.

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1. For water depths over 2000m, cables are laid directly on the seabed. There is no requirement for protective burial hence seabed disturbance is minimal. 1,2 [Please note superscripts refer to appended references]

2. Laying is planned to be an one-off operation in the 20-25 year design life of a cable, but faults may occur mainly via natural and human-related hazards. 3,4

3. Overall, cable faults are few. Thus the seabed surface disturbance caused by recovery operations will be infrequent. When repairs are needed, grapnels used for cable recovery may disturb the seabed along metre-wide paths. The recovered cable is repaired and lowered to the seabed to minimise further disturbance.5,6 Again, a repair is planned to be a one-off-operation in a cables' remaining design life.

4. The size of a cable in ABNJ depths is 17-21mm diameter, hence its physical foot print is small. 7,8

Summary of interactions between submarine telecommunications cables and the ABNJ marine environment .


5. Cables are protected by a substantial sheath of marine grade polyethylene, which is inert in the ocean 9,10.

6. Research into cables and benthic organisms living on and in the seabed show there is no statistical difference in the abundance and diversity for organisms living near and away from a cable. 11-13 Submarine cable DC power is low- .6 to 1 amp. (A laptop runs on about 3 amps and house current is 15-20 amps)

7. Whale entanglements with cables ceased with the transition from telegraph to coaxial cables in the early 1960s. This change reflected improved cable design,

laying techniques and seabed mapping. It should also be noted that ABNJdepths exceed diving limit of sperm whales (~2000m) - the species mainly involved in telegraph cable entanglements. 6

8. Fish bites, including those of deep dwelling crocodile sharks, have affected cables, but numbers have reduced due to improved bite protection. Bite-related faults have not been reported since 2006. 4,6,14

Summary of interactions between submarine telecommunications cables and the ABNJ marine environment


Historical data for cables, fish, and whales-all oceansTelegraphic Era Coaxial Era Fibre Era


9. The risk from natural hazards is low with about four ABNJ (high seas) cable faults per 6 years . This reflects the non-seismic nature of much of the ABNJ and hence the low incidence of submarine landslides and turbidity currents 15. But earthquakes have caused cable breaks, on the Grand Banks in 1929. 16

10. Risks from climate change are low due to the ABNJ depths, which dampen more obvious effects of change over the upper ocean such as increased storminess and rising sea level17. Changes in the number/strength of eddies affecting are very likely to be within cable tolerances.



Other Environmental Considerations

Since their inception, submarine cables have provided information and knowledge on the marine environment in collaboration with the science community.

1. Recovered cables yielded biological samples for museum and university collections.18

2. Cables underpin the communications and data transfer for major ocean observatories including Ocean Networks Canada and the Ocean Observatories Initiative. 19,20

3. Cables have acted as sentinels of the deep ocean providing information on processes that shape the ocean floor such landslides and turbidity currents.21

4. Discussions are underway between the industry, academia and the International Telecommunications Union regarding the feasibility of equipping cables with environmental sensors22 to monitor ocean change and hazards.

5. Cables have a low carbon footprint .23 For a two day teleconference between Stockholm and New York lasting 8 hours/day, 5.7kg of CO2eq would be released compared to 1920kg emitted for the face-to-face meeting, which involved 16,000 km of air travel. This study shows the modest carbon footprint of submarine telecommunications and their contribution to reducing greenhouse gas emissions.

Submarine Cables-Environmental Considerations


Conclusion

Submarine telecommunications cables have a minimal impact on the deep ocean environment e.g. 23, a conclusion is supported available scientific information 1,2. Focus on peer-reviewed research reflects the long-standing and continuing association with the science community that began with deployment of the first trans-oceanic cable.



1. Burnett, D.R., Beckman, R .C. and Davenport, T.M. 2014. Submarine Cables: the Handbook of Law and Policy. Martinus Nijhof Publishers. ISBN 978-90-04-26032-0.

2. UNEP/ICPC, 2020. Submarine Cables and the Oceans – Connecting the World. UNEP-WCMC Biodiversity Series No 31. ICPC/UNEP/UNEP-WCMC.

3. Kordahi, M.E., Shapiro, S. & Lucas, G., 2007. Trends in submarine cable faults. Proceedings SubOptic 2007, Baltimore; paper We A1.2, 4 pp. http://www.scig.net/

4. Drew, S., 2010. Submarine Cables and other maritime activities in Submarine Cables and the Oceans – Connecting the World. UNEP-WCMCBiodiversity Series No 31. ICPC/UNEP/UNEP-WCMC, p.43-48.

5. Ford-Ramsden, K. and Burnett, D., 2014. Submarine cable repair and maintenance in Burnett, D.R., et al. Submarine Cables: the handbook of Law and Policy. Martinus Nijhof Publishers. ISBN 978-90-04-26032-0, p.155-177.

6. Wood, M.P. & Carter, L., 2008. Whale entanglements with submarine telecommunication cables. IEEE Journal of Oceanic Engineering 33, 445-450

7. Hagadorn, L., 2010. Inside submarine cables in Submarine Cables and the Oceans – Connecting the World. UNEP-WCMC Biodiversity Series No 31. ICPC/UNEP/UNEP-WCMC, p.43-48.

8. Ford-Ramsden, K. and Davenport, T., 2014. The manufacture and laying of cables in Burnett, D.R., et al. Submarine Cables: the Handbook of Law and Policy. Martinus Nijhof Publishers. ISBN 978-90-04-26032-0, p.124-154.

9. Saido, K et al, 2009. New Contamination Derived from Marine Debris Plastics 238th ACS National Meeting, 22-26 August 2009, Washington, DC.

10. Andrady, AL , 2000. Plastics and their Impacts in the Marine Environment” Proceedings of the International Marine Debris Conference on Derelict Fishing Gear and the Ocean Environment, 6-11 August 2000, Hawaii.

11. Kogan, I. et al, 2006, ATOC/Pioneer Seamount Cable After 8 Years on the Seafloor: Observations, Environmental Impact” Continental Shelf Research 26. 771-787.

12. Andrulewicz, E. et al., 2003. The Environmental Effects of the Installation and Functioning of the Submarine SwePol Link HVDC Transmission Line: A Case Study of the Polish Marine Area of the Baltic Sea” Journal of Sea Research 49, 337-345.

SCIENCE/ENGINEERING BASED PEER REVIEW REFERENCES


13. Grannis, B.M., 2001. Impacts of Mobile Fishing Gear and a Buried Fiber-optic Cable on Soft-sediment Benthic Community Structure. M. Sc. Thesis, University of Maine.

14. International Cable Protection Committee, 1988. “Fish and Shark Bite Database” Report of the International Cable Protection Committee; MarraL.J. 1989, Shark bite with the SL submarine light wave cable system, IEEE Journal of Oceanic Engineering 14, 230-237.

15. Pratson L.F. and Laine, E.P., 1989, The relative importance of gravity induced versus current-controlled sedimentation during the Quaternary along the mideast U.S. outer continental margin revealed by 3.5 kHz echo-character: Marine Geology, 89, 87-126.

16. Heezen, B.C. & Ewing, M., 1952. Turbidity currents and submarine slumps, and the 1929 Grand Banks earthquake. American Journal of Science 250, 849-873.

17. NOAA, 2012. US Climate Extremes Index; NE USA. National Climate Data Center, NOAA. http://www.ncdc.noaa.gov/extremes/cei/graph/ne/cei/01-12

18. Ralph, P.M., and Squires D.F., 1962. The extant scleractinian corals of New Zealand. Zoology Publications, Victoria University of Wellington 29, 1-19.

19. Ocean Networks Canada, 2014. About Ocean Networks Canada, http://www.oceannetworks.ca/about-us

20. Ocean Observatories Initiative, 2014. http://oceanobservatories.org/

21. Carter, L., R. Gavey, P.J. Talling, and J.T. Liu, 2014. Insights into submarine geohazards from breaks in subsea telecommunication cables. Oceanography 27(2):58–67, http://dx.doi.org/10.5670/oceanog.2014.40

22. ITU/WMO/UNESCO/IOC, 2014. The scientific and societal case for the integration of environmental sensors into new submarine telecommunication cableshttp://www.itu.int/dms_pub/itu-t/opb/tut/T-TUT-ICT-2014-03-PDF-E.pdf.

23. Donovan, C., 2009, Twenty Thousand Leagues Under the Sea: A Life Cycle Assessment of Fibre Optic Submarine Cable Systems. Degree Project, SoM EX2009-40 KTH Department of Urban Planning and Environment, Stockholm

24. Department of Environment, Food and Rural Affairs, 2011. UK marine policy statement published.http://www.defra.gov.uk/news/2011/03/18/marine-policy-statement/

SCIENCE/ENGINEERING PEER REVIEW REFERENCES

http://www.ncdc.noaa.gov/extremes/cei/graph/ne/cei/01-12

http://www.defra.gov.uk/news/2011/03/18/marine-policy-statement/


1. Carter L., Burnett D., Marle G., Hagadorn L., Bartlett-McNeil D., Irvine N., Submarine Cables and the Oceans Connecting the World, UNEP-WCMCBiodiversity Series No. 31. ICPC/UNE-WCMC. (2009)

2. Burnett, D., Beckman R., Davenport T., Submarine Cables The Handbook of Law and Policy, Martinus Nijhoff Publishers (Brill),( 2014)

3. Submarine Cables and Deep Seabed Mining, Advancing Common Interests and Addressing UNCLOS “Due Regard” Obligations, Technical Study: No. 14 , ISA (2015)

4. Oceans and the Law of the Sea, Report of the Secretary-General, A/70/7 (30 March 2015), # 53 and 54.

5. De Juvigny, A., Davenport, T, Burnett, D., Freestone, D., Submarine Telecommunications Cables in the Sargasso Sea, 30 International Journal of Marine and Coastal Law Vol., No. 2, 371—378, (June 2015)

6. World Ocean Assessment, http://www.worldoceanassessment.org/?page_id=14 , Chapter 19 [Submarine Cables and Pipelines] (2016)

7. Handbook on Ocean Resources and Management, Routledge (Chapter 23-Submarine Cables-Carter L., Burnett, D.) (2016)

General References on Submarine Cables

http://www.worldoceanassessment.org/?page_id=14


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coastal state encroachment on high seas submarine cable ...€¦ · conference 2016 15-16 april...

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