Submarine Infrastructures and the International Legal Framework

Abstract

The purpose of this paper is to identifyweaknesses in the international framework forthe protection of submarinecables beyond the sovereign waters of coastal States. To illustrate this,the paper uses a hypothetical case study of what a possible attack on a submarine cable maylook like.First, itprovidesan overview over the applicable framework,with a particular focus oninternational peacekeeping law (ius contra bellum), the law of the sea, protection against piracy,and criminal prosecution under national criminal law. Various international conventions play a key role in relation to submarine cables.Particularly relevant arethe Convention on Submarine Telegraph Cables of1884,the United Nations Convention on the Law of the Sea of1982,as well as the peacekeeping regulationsof theUnited NationsCharter of 1949. After outliningthe legal frameworkusing the classical methods of treaty interpretation,as well astakingthe scholarly literatureon this subject into account, the example is subsumed under the various means ofprotection under international law. The peacekeeping law of the United Nations turns out to be ineffective because,on the one hand,an attack as describedin the reference scenariodoes not necessarily constitute an armed attack in the sense of the UN Charter and therefore cannot be met with military countermeasures. On the other hand, an authorisation by the Security Councilcannot begiven quickly enough to counter the attack militarily. In addition to that, measures taken in the framework of the Law of the Sea Convention are ineffective due to the exclusive flag Statejurisdiction which precludes other States from actingin this matter. Anexception to this principle,namelyuniversaljurisdiction to combatpiracy,is unlikely to be applied in the context of an attack against a submarine cable. Finally, as result of theexclusivejurisdiction of theflag Stateand the poor implementation of theinternational obligations under the Law of the Sea Convention, national criminal law is also inadequateas arepressive means of protection.