THE LAWTHE LAWExisting rules and new Existing rules and new

challengeschallenges

Workshop on Submarine Cables Workshop on Submarine Cables for Ocean/Climate Monitoring and for Ocean/Climate Monitoring and

Disaster WarningDisaster Warning

OutlineOutline

• The laying of submarine cables: a The laying of submarine cables: a traditional use of the seas traditional use of the seas

• Legal framework: The 1982 UN Convention Legal framework: The 1982 UN Convention on the Law of the Sea (UNCLOS)on the Law of the Sea (UNCLOS)

• The right to lay submarine cables on the The right to lay submarine cables on the continental shelf: balancing a freedom of continental shelf: balancing a freedom of the high seas with the sovereign rights of the high seas with the sovereign rights of the coastal State the coastal State

• The “reasonable measures” that the The “reasonable measures” that the coastal State may take for the protection coastal State may take for the protection of its rights over the continental shelfof its rights over the continental shelf

Outline (cntd)Outline (cntd)

• New use of submarine cables: integration New use of submarine cables: integration into a real-time global climate and disaster into a real-time global climate and disaster monitoring systemmonitoring system

• Re-use of out-of-service cables; Re-use of out-of-service cables; attachment of sensors/adding components attachment of sensors/adding components to existing cables; new generation of dual to existing cables; new generation of dual use/multi-purpose cablesuse/multi-purpose cables

• Applicable rules under UNCLOSApplicable rules under UNCLOS• ““Accessibility” and “availability” of data Accessibility” and “availability” of data • ConclusionsConclusions

The laying of submarine The laying of submarine cables: a traditional use of the cables: a traditional use of the seasseas• Since 1850, when the first international Since 1850, when the first international

telegraph link was established between England telegraph link was established between England and France, the objective of laying submarine and France, the objective of laying submarine cables has been the same: to provide and cables has been the same: to provide and facilitate international telecommunicationsfacilitate international telecommunications

• The international community has recognized the The international community has recognized the strategic value of submarine cables and since strategic value of submarine cables and since 1884 has adopted measures for their regulation 1884 has adopted measures for their regulation and protection (c.f. the 1884 Convention for the and protection (c.f. the 1884 Convention for the Protection of Submarine Telegraph Cables) Protection of Submarine Telegraph Cables)

Legal framework: UNCLOSLegal framework: UNCLOS

• Many of the provisions of the 1884 Convention were Many of the provisions of the 1884 Convention were incorporated into the 1958 Geneva Convention on the incorporated into the 1958 Geneva Convention on the Continental Shelf and subsequently to UNCLOS, which Continental Shelf and subsequently to UNCLOS, which provides the general legal framework within which all provides the general legal framework within which all uses and activities in the oceans and seas are carried uses and activities in the oceans and seas are carried out and determines the rights and obligations of all out and determines the rights and obligations of all States (coastal, flag and port States). States (coastal, flag and port States).

• These rules have been examined in detail by the These rules have been examined in detail by the previous speakers. Special reference, however, should previous speakers. Special reference, however, should be made to the laying of cables on the continental be made to the laying of cables on the continental shelf. shelf.

• UNCLOS recognizes the right of all States to lay UNCLOS recognizes the right of all States to lay submarine cables on the continental shelf, but at submarine cables on the continental shelf, but at the same time subjects this freedom to the right of the same time subjects this freedom to the right of the coastal State to take “reasonable measures” the coastal State to take “reasonable measures” for the exploration of the continental shelf and the for the exploration of the continental shelf and the exploitation of its natural resourcesexploitation of its natural resources

• Although article 79(2) does not specify these Although article 79(2) does not specify these measures, it is widely acceptable that the coastal measures, it is widely acceptable that the coastal State may require notification to its competent State may require notification to its competent authorities of the planned activity, details of the authorities of the planned activity, details of the cable ship and the purported route. Submission of cable ship and the purported route. Submission of a report at the end of the activities and possibly a report at the end of the activities and possibly the presence of an observer onboard may also be the presence of an observer onboard may also be required.required.

Cable route surveysCable route surveys

• Similar requirements are often imposed by Similar requirements are often imposed by coastal States with respect to cable route coastal States with respect to cable route surveys to ensure that the vessel is not surveys to ensure that the vessel is not engaged in the exploration of their engaged in the exploration of their continental shelf and the exploitation of its continental shelf and the exploitation of its natural resources, including submission of natural resources, including submission of the survey data upon completion of the the survey data upon completion of the survey. survey.

• Notification is essential also for avoiding Notification is essential also for avoiding interference with other uses under coastal interference with other uses under coastal jurisdiction and for issuing all the jurisdiction and for issuing all the necessary navigational warnings. necessary navigational warnings.

• At the same time, the national legislation of At the same time, the national legislation of a small number of States adopts permits a small number of States adopts permits requirements for the conduct of surveys requirements for the conduct of surveys and/or the laying of submarine cables on the and/or the laying of submarine cables on the continental shelf. continental shelf.

• Finally, some States claim that cable route Finally, some States claim that cable route surveys fall within the notion of “marine surveys fall within the notion of “marine scientific research” (MSR) and thus under scientific research” (MSR) and thus under Part XIII of UNCLOS and the consent regime Part XIII of UNCLOS and the consent regime of the coastal Stateof the coastal State

• In concluding, the freedom to lay submarine In concluding, the freedom to lay submarine cables is not unlimited. UNCLOS recognizes cables is not unlimited. UNCLOS recognizes the legitimate interests -and in essence the the legitimate interests -and in essence the security concerns- of the coastal State on security concerns- of the coastal State on whose continental shelf the cable will be whose continental shelf the cable will be installed, by enabling it to take “reasonable installed, by enabling it to take “reasonable measures” for the exploration of the measures” for the exploration of the continental shelf and the exploitation of its continental shelf and the exploitation of its natural resources. As a result, many coastal natural resources. As a result, many coastal States apply in practice a “notification and States apply in practice a “notification and reporting system”. reporting system”.

New use of submarine New use of submarine cablescables• The creation of a cabled real-time global The creation of a cabled real-time global

climate and warning system raises two climate and warning system raises two fundamental questions:fundamental questions:

• First, whether this new use of submarine First, whether this new use of submarine cables can be considered as falling within cables can be considered as falling within the scope of the freedom of laying the scope of the freedom of laying submarine cablessubmarine cables

• If not, which is the applicable legal regime If not, which is the applicable legal regime under UNCLOS? Is Part XIII (marine scientific under UNCLOS? Is Part XIII (marine scientific research) of any relevance? Will the consent research) of any relevance? Will the consent of the coastal State be required in such of the coastal State be required in such cases?cases?

• Second, an equally important issue is that of Second, an equally important issue is that of “accessibility” and “availability” of data. Will “accessibility” and “availability” of data. Will all data be freely accessible or should there all data be freely accessible or should there be exceptions, i.e. for national security be exceptions, i.e. for national security reasons or for being related to the reasons or for being related to the exploration and the exploitation of the exploration and the exploitation of the continental shelf? continental shelf?

• All these questions wait for an answer before All these questions wait for an answer before the elaboration and effective the elaboration and effective implementation of a cabled real-time global implementation of a cabled real-time global climate and disaster monitoring system climate and disaster monitoring system

Nature and scope of Nature and scope of activitiesactivities• We may distinguish between two kinds of We may distinguish between two kinds of

projects: projects: • a) Cabled Ocean Observatories, i.e. a where a) Cabled Ocean Observatories, i.e. a where

observation sites (i.e. OBS, pressure gauge observation sites (i.e. OBS, pressure gauge instruments, seismographs, etc), are linked instruments, seismographs, etc), are linked via submarine cables that will allow data via submarine cables that will allow data transfer to shore in real time and transfer to shore in real time and

• b) attachment of sensors and other b) attachment of sensors and other scientific equipment (i.e. seismometers, scientific equipment (i.e. seismometers, underwater microphones, etc.) to existing underwater microphones, etc.) to existing submarine cables (repeaters, specialized submarine cables (repeaters, specialized hardware etc)hardware etc)

Applicable rules under Applicable rules under UNCLOS UNCLOS • In our view, both cases should be considered as In our view, both cases should be considered as

falling under the legal regime of marine scientific falling under the legal regime of marine scientific research. research.

• It is true that UNCLOS does not define the term It is true that UNCLOS does not define the term “marine scientific research” and that there have “marine scientific research” and that there have been heated debates as to whether “hydrographic been heated debates as to whether “hydrographic surveys” and/or the “collection of oceanographic surveys” and/or the “collection of oceanographic data” are excluded from Part XIII of UNCLOS and data” are excluded from Part XIII of UNCLOS and the consent regime of the coastal State.the consent regime of the coastal State.

• Nevertheless, the installation of cabled ocean Nevertheless, the installation of cabled ocean observatories and climate change monitoring and observatories and climate change monitoring and disaster warning systems do not appear to raise disaster warning systems do not appear to raise similar issues. similar issues.

Applicable rules under Applicable rules under UNCLOS UNCLOS (cntd)(cntd)

• These activities cannot be interpreted as inherent These activities cannot be interpreted as inherent to the traditional freedom of laying submarine to the traditional freedom of laying submarine cables or as “an international use of the seas cables or as “an international use of the seas associated with the operation of submarine cables” associated with the operation of submarine cables” as provided for in article 58(1) of UNCLOS with as provided for in article 58(1) of UNCLOS with respect to the EEZ. respect to the EEZ.

• There may even be room for claiming an “abuse of There may even be room for claiming an “abuse of right”, which is specifically prohibited by article 300 right”, which is specifically prohibited by article 300 of UNCLOS, namely that “States Parties shall fulfill of UNCLOS, namely that “States Parties shall fulfill in good faith the obligations assumed under this in good faith the obligations assumed under this Convention and shall exercise the rights, jurisdiction Convention and shall exercise the rights, jurisdiction and and freedomsfreedoms recognized in this Convention in a recognized in this Convention in a manner which would not constitute an abuse of manner which would not constitute an abuse of right”.right”.

• It has to be recalled that under Article 258 It has to be recalled that under Article 258 of UNCLOS, “the of UNCLOS, “the deployment and usedeployment and use of of any type of scientific research any type of scientific research installations installations or equipmentor equipment in any area of the marine in any area of the marine environment shall be subject to the same environment shall be subject to the same conditions as are prescribed in this conditions as are prescribed in this Convention for the conduct of marine Convention for the conduct of marine scientific research” scientific research”

Accessibility and availability of Accessibility and availability of data data

• Major concern for coastal States, Major concern for coastal States, especially transit Statesespecially transit States

• Possible exceptions for reasons relating to Possible exceptions for reasons relating to national security and/or the exploration of national security and/or the exploration of the continental shelf and the exploitation the continental shelf and the exploitation of its natural resourcesof its natural resources

• Argo Project: Guidelines for the Argo Project: Guidelines for the Implementation of Resolution XX-6 of the Implementation of Resolution XX-6 of the IOC Assembly Regarding the Deployment IOC Assembly Regarding the Deployment of Profiling Floats in the High Seas Within of Profiling Floats in the High Seas Within the Framework of the Argo Programmethe Framework of the Argo Programme

Accessibility and availability of Accessibility and availability of data data (cntd)(cntd)

• ““All the data obtained by the Argo Programme floats All the data obtained by the Argo Programme floats once they enter the EEZ will be made freely available once they enter the EEZ will be made freely available by the implementer, with the exception of data by the implementer, with the exception of data of of direct significance for the exploration and exploitation direct significance for the exploration and exploitation of natural resources, whether living or non-livingof natural resources, whether living or non-living, , which, to protect its sovereign rights and jurisdiction in which, to protect its sovereign rights and jurisdiction in its EEZ, the IOC Member whose EEZ the float enters its EEZ, the IOC Member whose EEZ the float enters formally requires the implementer formally requires the implementer notnot to be to be distributed’ distributed’

• EuroSITES. Data policy: “The only complete exception EuroSITES. Data policy: “The only complete exception to the principle of free access is when there is a to the principle of free access is when there is a notified issue of positive harm being caused by the notified issue of positive harm being caused by the release of the data, i.e. to the environment or to release of the data, i.e. to the environment or to national/international security”national/international security”

Thank you for your attentionThank you for your attention

Dr Anastasia StratiDr Anastasia Strati

Expert CounselorExpert Counselor

Ministry of Foreign Affairs, GreeceMinistry of Foreign Affairs, Greece

Email: astrati@mfa.grEmail: astrati@mfa.gr