European Subsea Cables Association (ESCA) – Written evidence (UNC0031)

Background:

[1] ESCA represents national and international companies which own, operate or service submarine telecoms and power cables throughout the UK and Europe and is primarily focussed on promoting marine safety and protecting subsea cable installations in UK, European and surrounding waters. Both telecommunications and power cables play an increasingly important role in modern living and the value of the subsea cables sector from a social and economic perspective is growing rapidly as a response to this.

[2] While discussion about the future is speculative, it is clear that Internet traffic will continue to increase and that capacity is needed to ensure that data moves efficiently and rapidly. The internet is critical to economic growth and for meeting new and more sustainable communication. International and domestic subsea cable systems are vital both for global communications and connecting the UK’s island communities.

[3] The subsea cables industry is also integral to the transmission of power from offshore renewable energy projects as well as interconnector cable systems between countries. The future generation of a wider variety of energy sources (notably solar and offshore wind) and the extension of interconnectors, is critical to UK energy security and less reliance on fossil fuels.

[4] Interconnector cable systems enable secure and affordable supply of energy between countries. They improve sustainability, by providing a means to pass surplus energy between countries and make a significant contribution to forging a lower carbon economy.

[5] The subsea cable sector has unique cross-boundary considerations and relies upon international treaties such as UNCLOS to protect the freedoms of subsea cables and the rights afforded to such cables. The distinctions between types and sectors of subsea cable must well recognised. Those which connect artificial islands and platforms, or that exploit natural resources are treated differently under UNCLOS to those which connect countries, island communities and contribute to the flow of global communications and energy – and it remains key to protect the rights and freedoms of linear telecommunications and power cables.

General

1. What have been the main successes and accomplishments of UNCLOS over the past 40 years?

[6] The existence of UNCLOS as a cornerstone of international cooperation can be seen as a success in itself. It provides language and principles associated with unimpeded installation, maintenance and protection of submarine cables – and responsibilities on signatories to uphold.

[7] The principles that coastal states should adopt in relation to subsea cables are very important to the submarine cable industry across Europe. Linear cables can traverse numerous boundaries and the ability to install and repair certain types of cable within EEZ outside of sovereign jurisdiction is extremely important to the industry. The issues which face subsea cables as a result are unique to the industry and require special consideration through international cooperation.

[8] The distinction from cables which exploit resources, or connect artificial islands is also important in terms of the rights for states to develop offshore renewables outside of Territorial Seas.

2. Which countries are the key international actors influencing the international law of the sea? What are their approaches towards UNCLOS?

No comments from ESCA.

3. How is UNCLOS enforced and how successful is its enforcement? How successful is dispute resolution under UNCLOS?

[9] From the perspective of a subsea cable owner, it is unclear. States can make representations to ITLOS, but if a country that has signed and ratified UNCLOS does not adhere to the principles, there is no recourse for submarine cable owners to make any representations other than via their state representative – the process is protracted, and timescales would make it impossible to seek any enforcement.

[10] Some coastal nations do adopt the principles of UNCLOS in full and respect the freedoms of submarine cables in EEZ. However other countries have differing interpretation resulting in unwelcome complexity and regulatory burden for the industry. This can lead to unintended strategic consequences for other coastal states.

[11] The UK is a good example of a coastal state adhering to UNCLOS in relation to subsea cables, and this is welcomed. However even within Europe there are nations which are developing new regulation which does not fully adhere to the principles of UNCLOS relating to subsea cables, and this should be discouraged.

4. What are the other important international agreements and treaties which complement UNCLOS?

[12]

• The International Convention for the Protection of Submarine Telegraph Cables 1884.

• International Regulations for Preventing Collisions at Sea (COLREGs) (1972) – COLREGs facilitate international cooperation at sea in practical terms for vessels that are limited in manoeuvrability or displaying that they are laying or repairing cable.

5. What is the role of the International Maritime Organisation (IMO) and other international organisations in developing UNCLOS and the law of the sea?

[13] Given the differing levels of recognition of the provisions on UNCLOS relating to subsea cables from coastal states adopting the principles in domestic law, it is important that the IMO and other international organisation champion the rights specifically relating to submarine cables and understand where signatories to the convention have or have not recognised subsea cables in domestic legislation.

[14] Jurisdictional creep to exert further regulation of subsea cables either by omission or intent is unwelcome and should be discouraged.

[15] The ever-increasing level of development of other marine industries on the seabed requires greater cooperation and mutual recognition of the obligations in international treaties such as UNCLOS equally across all states.

5. What are the main challenges facing the effective implementation of UNCLOS in 2021? We would particularly welcome responses on:

• Climate change and the impact it has had/will have on the structures and provisions of UNCLOS (including trading routes, maritime boundaries, and the status of island ocean states)

[16] Exertion of further control over cables in EEZ will impact the routing considerations of subsea cable developers. This could lead to unnecessary domestic regulation changing the strategic routes that new cables follow or impair the ability to quickly repair them.

[17] The importance of linear energy cables to facilitate the transfer of low carbon renewable energy, and telecommunications cables for domestic and global communications (reducing reliance on international travel) means that ignoring the freedoms of submarine cables could lead to unintended consequences in relation to meeting climate targets.

• Maritime security and human rights at sea (including migration, modern slavery and human trafficking)

No comments from ESCA.

• Autonomous maritime vehicles (both commercial and military), cybersecurity, and other new technologies

No comments from ESCA.

• Regulation of access to economic resources, including on the deep seabed and in the water column, fishing, and the protection of resources such as undersea cables

[18] Whilst cables in ESCA’s geographic area are generally in shallower waters, Deep Sea Mining and matters of regulation are concerning to subsea cable industry on a wider international basis. There are papers and viewpoints on such international considerations from the International Cable Protection Committee, and it is recommended that industry views are considered on a global basis when considering such matters.

7. In light of these challenges, is UNCLOS still fit for purpose? Can or should UNCLOS be renegotiated to better address these challenges?

[19] ESCA considers that the principles of UNCLOS relating to submarine cables remain fit for purpose – but that with the increasing levels and scale of development on the seabed it is now more important than ever to champion and emphasise the importance of adopting such principles in full.

[20] Any renegotiation must protect the provisions of UNCLOS relating to submarine cables. No other marine industry has the same unique challenges and requirements needing to traverse multiple international boundaries and operate in both coastal shallow waters and the deep oceans. The critical importance of subsea cables for telecommunications and energy also requires close cooperation between states to protect such critical international assets.

[21] Member state cooperation and adherence to UNCLOS, and general recognition of the benign nature of cables on the seabed mean that coastal states should not seek to impose further restrictions on submarine cables.

UK’s Maritime Strategy

8. What is your assessment of the UK’s policy and practice within the current legal framework of the international law of the sea? Are the Government currently working to address any of the challenges outlined above?

[22] UK upholds the principles of UNCLOS in relation to submarine cables through domestic legislation, and this is welcomed by the industry. However this is not the case across all other nations, and jurisdictional creep not only threatens the ability to lay and repair individual cables, but also has implications for key strategic geographic areas for submarine cables.

9. What should be the priorities for the UK Government regarding the future of UNCLOS and the international law of the sea? In what areas can or should the UK be a leader?

[23] The UK should promote adoption of the provisions of UNCLOS in relation to submarine cables in international forums and to other nations. As an island the UK relies upon digital connectivity and energy transfer – and it is in the interests of all to cooperate through treaties such as UNCLOS.

10. What will be the most important international partnerships and alliances for the UK in addressing these challenges and upholding its interests with regards to the law of the sea?

[24] It is vital the UK Government works with the subsea cable industry to understand the key challenges across Europe and internationally to uphold the interests of all coastal nations in this respect.

11. In light of the challenges posed by climate change to the provisions of UNCLOS, what considerations should be given to the law of the sea during and after COP26, and what should be the position of the UK Government?

[25] All sectors that use and require subsea cables contribute in the efforts to move towards net zero and the targets of government to halt and reverse the impacts of climate change. Renewables are producing clean energy and require cables to bring that energy ashore. Telecommunications cables facilitate remote communications - allowing business and people to freely communicate. This was sharply felt during the pandemic when international travel virtually came to a halt, yet business could continue around the world. Interconnectors enable sharing of energy between nations and continents. Remote island communities also rely entirely on such connections for many aspects of modern life.

[26] The UK Government should champion cooperation and the freedoms of submarine cables in UNCLOS to ensure that the ability to lay and repair them is not impeded through jurisdictional creep.

ESCA November 2021.

Received 12 November 2021