USC0040

Written evidence submitted by Dr Jacques Hartmann, Professor in International Law and Human Rights, University of Dundee

I have been researching and writing about the law of the sea and undersea cables for several years. I am making this submission because I believe my expertise may be of assistance to the Committee. The views expressed below are my own and do not reflect those of any organisation with which I am or have been associated. For reasons of space, I only answer question 5.

Summary: This submission highlights gaps in the domestic and international legal framework protecting undersea cables. The UK’s Submarine Telegraph Act 1885 is outdated and has limited geographical application. There is limited legal authority in international law to board foreign-flagged vessels suspected of damaging cables. I suggests that intentional damage to undersea cables could be treated as piracy, allowing for universal jurisdiction.

5. How effective are the deterrents against the targeting of our undersea cables? Are any improvements needed?

1. This submission focuses on the legal framework related to undersea cables, including options for redress. Existing academic commentary highlights significant gaps in the current legal framework,[1] most notably the 1884 Convention for the Protection of Submarine Telegraph Cables (1884 Convention) and the 1982 United Nations Convention on the Law of the Sea (UNCLOS).[2]

2. Before addressing these gaps, it is important to note that UNCLOS – often referred to as the ‘constitution of the oceans’ – is one of the most widely ratified treaties in the world, with 168 parties, including the United Kingdom.[3]

3. UNCLOS is largely a ‘framework’ convention, which means that it establishes a set of broad commitments for its parties and a general system of governance. It contains relatively few detailed or precise obligations, and leaves more detailed rules on issues such as shipping, fisheries and protection of the marine environment to subsequent agreements, of which there are many.

4. Even so, UNCLOS includes several provisions concerning the laying of subsea cables. These grant all states the right to lay cables in their exclusive economic zones (EEZ), on continental shelves, and on the high seas.[4] It also provides for the maintenance and repair of cables and requires state parties to adopt domestic legislation prescribing penalties for any damage. A culpable party may be held financially accountable for such damage.[5]

5. Where a cable owner intends to bring proceedings against a culpable party, the first step is to determine which country has jurisdiction to hear the dispute. This depends on various factors governed by private international law.[6] If the prospective defendant is domiciled in an EU member state (such that the Brussels Regulation Recast applies)[7] or in a state that is a counterparty to the Lugano Convention,[8] the ordinary rule is that the defendant must be sued in the courts of the state where they are domiciled. However, a special derogation allows defendants to be sued ‘in the place where the harmful event occurred’.[9]

6. In theory, damage to an undersea cable can also result in criminal prosecution. In the UK, this is addressed by the Submarine Telegraph Act 1885, which implements the 1884 Convention.[10] The Act permits criminal prosecution of persons who deliberately or negligently damage cables. However, such prosecutions are rare. As noted by Lloyd’s Shipping & Trade Law, ‘It is understood that prosecutions are not often brought, supposing they are brought at all.’[11] Moreover, the Act does not apply beyond the territorial sea (12 nautical miles).[12]

7. The lack of criminal prosecution is not unique to the UK. Both the 1884 Convention and UNCLOS require states to criminalise the wilful or negligent damaging of undersea cables.[13] Yet, few states have enacted the necessary legislation.[14]

8. This lack of domestic legislation means that attacks on subsea cables may not technically be a crime in certain jurisdictions due to the absence of applicable domestic law. This was highlighted by the Foreign, Commonwealth and Development Office (FCDO) in evidence to the International Relations and Defence Committee’s inquiry on UNCLOS: The Law of the Sea in the 21st Century.[15]

9. The uncertain international legal framework further contributes to this problem. The International Law Association (ILA), a global non-governmental organisation dedicated to the study, clarification, and development of international law, established a subcommittee on Submarine Cables and Pipelines Under International Law in 2018. Its 2024 report, which examined intentional or deliberate acts of damage to undersea cables and pipelines, highlighted these uncertainties.[16]

10. The report concludes that UNCLOS provides only limited grounds for ‘enforcement measures against private vessels suspected of committing acts of damage to undersea cables and pipelines in all maritime spaces.’[17] In other words, there is no clear legal basis under international law for boarding a foreign-flagged ship suspected of damaging subsea cables.

11. A recent incident illustrates this point. In November 2024, the China-flagged bulk carrier Yi Peng 3 was accused of dragging its anchor and cutting undersea cables in the Baltic Sea. After the incident, the vessel moored in international waters between Denmark and Sweden. Following an inspection by Chinese investigators, it continued its voyage without any charges or other legal remedies. Sweden subsequently criticised China for refusing to allow its lead investigator on board.[18]

12. The 2024 ILA report notes that Article 10 of the 1884 Convention ‘may apply in the EEZ’.[19] Article 10 enables warships to visit foreign-flagged ships suspected of damaging undersea cables. However, this right has apparently only been exercised once, in 1959.[20] The usefulness of Article 10 is further limited by the fact that the 1884 Convention has only 41 parties, which do not include Russia or China.[21] Moreover, Article 10 provides only for ‘visitation on the high seas’, not for arrest or even search.[22]

13. As the International Relations and Defence Committee has noted, enforcement is a weakness of international law and presents a particular challenge on the high seas.[23] While UNCLOS relies on flag states to ensure compliance, limited enforcement capacity and the widespread use of flags of convenience have created a jurisdictional vacuum.[24]

14. Some, including myself, have suggested that intentional acts of damage to undersea cables could be classified as piracy under Article 101 of UNCLOS.[25] There are differing views as to whether Article 101 creates an international crime or simply provides a jurisdictional basis for domestic legislation and adjudication. It is submitted that the latter is the case. This means piracy suspects must be prosecuted in domestic courts under domestic law. Nevertheless, characterising attacks on undersea cables as piracy could offer several practical advantages. Among them, it would allow all states to arrest and prosecute suspected offenders under Article 105 of UNCLOS, provided domestic law allows.

15. In an era of intensifying geopolitical competition and hybrid threats, the security and resilience of undersea cables are vital for maintaining global connectivity, economic stability, and national security. Strengthening the legal framework and its enforcement is imperative. The UK is uniquely positioned to lead these efforts on the international stage. To this end, it is recommended that the UK should:

• Promote stricter flag state controls

Work with international partners to ensure a genuine and substantial link between vessels and their flag states, addressing the problem of flags of convenience and strengthening enforcement mechanisms.[26]

• Enhance capacity-building initiatives

Support coastal states, particularly in regions where critical cable infrastructure is located, in enacting domestic laws that criminalise attacks on undersea cables, potentially as piracy.

• Clarify the legal classification of cable damage as piracy

Issue a formal statement confirming that intentional acts of damage to undersea cables can constitute piracy under Article 101 of UNCLOS. This would enable the exercise of universal jurisdiction over suspected offenders.

• Amend the Submarine Telegraph Act to reflect modern maritime zones

Update the Submarine Telegraph Act 1885, the Criminal Damage Act 1971, or enact new legislation to clarify that damage to undersea cables constitutes a criminal offence, in line with the UK’s obligations under UNCLOS Article 113. This amendment or new legislation should ensure that acts of wilful or negligent damage to undersea cables are criminalised not only in UK territorial waters but also in the EEZ and continental shelf.

18 March 2025