ITU Workshop Rome, Italy September Douglas R. Burnett International Cable Law Advisor, ICPC Partner, Squire, Sanders & Dempsey (US) LLP UNDERSTANDING THE DIFFERENCES UNDER UNCLOS BETWEEN SUBMARINE CABLES AND MARINE SCIENTIFIC RESEARCH

2 PRESENTATION OVERVIEW I.SUBMARINE CABLES UNDER INTERNATIONAL LAW II.DIFFERENCES THAT COUNT UNDER UNCLOS FOR A DUAL USE TELECOM/MSR CABLE

3 REGIMES CHART Oceanic crust (basalt) Shelf edge Geological slope GCCS (4) LLLaaannnddd Continental crust (granite) Base of the slope Geological rise GCHS (26-30) High Seas 3 Nautical Miles 12 Nautical Miles 24 Nautical Miles 200 Nautical Miles 0 Depth in meters OOOccceeeaaannn UNCLOS (3)UNCLOS (33) UNCLOS (57) UNCLOS (87, ) High Seas UNCLOS (79, ) Territorial Sea Contiguous Zone Exclusive Economic Zone UNCLOS (58, )

4 ADDING MSR TO A TELECOM CABLE MAKES A BIG DIFFERENCE UNLIKE CABLES, MARINE SCIENTIFIC RESEARCH (MSR) IN THE EEZ AND UPON THE CONTINENTAL SHELF IS SUBJECT TO COASTAL STATE CONSENT. EFFORTS DURING NEGOTIATIONS BY THE U.S. AND OTHER SEAPOWERS TO PROVIDE FOR THE FREEDOM TO CONDUCT MSR WERE NOT SUCCESSFUL UNCLOS PROVISIONS ON MSR REFLECT THE COMPROMISE BETWEEN THE STATES FAVORING FREEDOM OF THE SEAS AND THE COASTAL STATES THAT DEMANDED ABSOLUTE CONTROL OF MSR IN THEIR EEZ AND CONTINENTAL SHELF. COASTAL STATES HAVE SOVEREIGN RIGHTS OVER NATURAL RESOURCES AND MSR IN THEIR EEZ AND UPON THEIR CONTINENTAL SHELF A DUAL USE CABLE (TELECOM AND MSR) IS SUBJECT TO THE MSR REGIME (PART XIII).

5 A MAJOR RISK UNCLOS ART.’S COASTAL STATES, IN THE EXERCISE OF THEIR SOVEREIGNTY, HAVE THE EXCLUSIVE RIGHT TO REGULATE, AUTHORIZE AND CONDUCT MSR IN THEIR TERRITORIAL SEAS, EEZ, AND ON THEIR CONTINNENTAL SHELF. SO HOW DOES THAT COMPARE WITH UNCLOS CABLE PROVISIONS?

6 COASTAL STATE CONSENT REQUIREMENTS UNCLOS MSR - COASTAL STATE CONSENT CAN BE WITHHELD IN EEZ AND CONTINENTAL SHELF. (ART. 245, 246) Direct significance for the exploitation and exploration of natural resources, whether living or non-living Drilling, use of explosives, introduction of harmful substances Construction of installations and structures Information provided to the coastal State is inaccurate Prior outstanding obligations to the coastal State from a prior research project UNCLOS CABLES - NO COASTAL STATE CONSENT REQUIRED, JUST A DUE REGARD OBLIGATION. (ART. 58, 78, 79, 87)

7 DESIGNATION OF “ OFF LIMIT ” AREAS UNCLOS MSR - COASTAL STATE CAN DESIGNATE AREAS IN THE EEZ AND ON THE CONTINENTAL SHELF OFF-LIMITS FOR MSR FOR EXPLORATION AND EXPLOITATION OF NATURAL RESOURCES (ART 246) UNCLOS CABLES - AREAS IN THE EEZ AND CONTINENTAL SHELF CAN NOT BE PLACED OFF-LIMITS-ONLY LIMITATION IS DUE REGARD. (ART 58, 78, 79, 87)

8 COASTAL STATE POWERS UNCLOS MSR - MSR ACTIVITIES SHALL NOT INTERFERE WITH ACTIVITIES UNDERTAKEN BY COASTAL STATES IN THE EXERCISE OF THEIR SOVEREIGN RIGHTS. (ART 246) UNCLOS CABLES - NO SIMILAR RESERVATION OF RIGHTS - ON THE CONTRARY SEVERAL LIMITATIONS ON THE COASTAL STATE IMPEDING THE LAYING AND MAINTAINING OF CABLES (ART. 58, 79, 87)

9 DUTIES TO PROVIDE INFORMATION UNCLOS MSR - DUTY TO PROVIDE INFORMATION TO THE COASTAL STATE NATURE AND OBJECTIVES OF THE PROJECT METHODS TO BE USED INCLUDING THE NAME, TONNAGE, TYPE AND CLASS OF VESSELS AND DESCRIPTION OF SCIENTIFIC EQUIPMENT EXPECTED DATE OF VESSEL APPEARANCE AND DEPARTURE NAME OF SPONSORING INFORMATION, ITS DIRECTOR, AND PERSON IN CHARGE OF THE PROJECT EXTENT THAT COASTAL STATE CAN PARTICIPATE OR BE REPRESENTED IN THE PROJECT (ART 248) UNCLOS CABLES - NO SIMILAR REQUIREMENTS (ART 58, 78, 79)

10 OBLIGATIONS TO ALLOW PARTICIPATION UNCLOS MSR - DUTIES OF MSR SCIENTIST COASTAL STATE TO PARTICIPATE OR BE REPRESENTED ON BOARD VESSELS WITHOUT COST TO THE COASTAL STATE. PROVIDE COASTAL STATE WITH REPORTS, PRELIMINARY AND FINAL. PROVIDE ALL DATA AND SAMPLES TAKEN PROVIDE ASSESSMENT OF DATA, SAMPLES, AND RESEARCH RESULTS INFORM COASTAL STATE OF ALL MAJOR CHANGES IN THE RESEARCH (ART 249) UNCLOS CABLES - NO SIMILAR OBLIGATIONS (ART 58, 78, 79)

11 RIGHTS OF LANDLOCKED AND GEOGRAPHICALLY CHALLENGED NATIONS UNCLOS MSR - ART 249 RIGHTS ARE ALSO EXTENDED TO NEIGHBOURING LAND-LOCKED STATES AND GEOGRAPHICALLY DISADVANTAGED STATES PROVIDED THE COASTAL STATE DOES NOT OBJECT TO THE PARTICIPATION OF QUALIFIED EXPERTS APPOINTED BY THE NEIGBORING LANDLOCKED OR GEOGRAPHICALLY DISADVANTAGED STATES) (ART 254) UNCLOS CABLES - LANDLOCKED STATES OR GEOGRAPHICALLY DISADVANTAGED STATES HAVE NO RIGHTS TO PARTICIPATE IN A SUBMARINE CABLE PROJECT (ART. 58, 78, 79, 87)

12 OBLIGATION TO RECOVER OUT-OF- SERVICE CABLES UNCLOS MSR - UNLESS OTHERWISE AGREED, OBLIGATION TO REMOVE ALL INSTALLATIONS OR EQUIPMENT WHEN RESEARCH COMPLETED. (ART. 249) UNCLOS CABLES - NO OBLIGATION TO RECOVER INTERNATIONAL CABLES NOT IN SERVICE OUTSIDE OF TERRITORIAL SEAS. (ART. 58, 78, 79)

13 COASTAL STATE POWERS TO SUSPEND OR TERMINATE SERVICES UNCLOS MSR - COASTAL STATE CAN SUSPEND OR REQUIRE CESSATION OF MSR FOR FAILURE TO COMPLY WITH ART. 249 AND THE MSR OPERATION MUST BE TERMINATED WITHIN A REASONABLE TIME. (ART 253) UNCLOS CABLES - OUTSIDE OF TERRITORIAL SEAS THERE IS NO RIGHT BY THE COASTAL STATE TO SUSPEND OR REQUIRE CESSATION OF SERVICES OR TERMINATE SERVICES UPON NOTICE BY A COASTAL STATE. (ART 58, 78, 79)

14 MARKINGS AND REGISTRY REQUIREMENTS UNCLOS MSR - INSTALLATIONS AND EQUIPMENT MUST BEAR IDENTIFICATION MARKINGS INDICATING THE STATE OF REGISTRY (ART 262) UNCLOS CABLES - NO MARKING REQUIREMENTS AND NO STATE OF REGISTRY (ART 58, 78, 79, 87, 112)

15 THIRD PARTY LIABILITIES UNCLOS MSR - LIABILITY FOR DAMAGE CAUSED BY FAILURE TO COMPLY WITH MSR REQUIREMENTS AND POLLUTION OF THE MARINE ENVIRONMENT (ART. 263) UNCLOS CABLES - NO LIABILITY FOR MSR. LIABILITY FOR DAMAGE TO OTHER CABLES OR PIPELINES INJURED DURING LAYING AND REPAIR (ART. 114, 115)

16 THE DIFFERENCE: EIG CASE STUDY PLACE HOLDER FOR SLIDE TO BE RECEIVED FROM AT&T Europe India Gateway (EIG) international telecommunication cable system (2011) showing nations in green where landing permits are required.

17 THE DIFFERENCE: EIG CASE STUDY Europe India Gateway (EIG) international telecommunication cable system (2011) showing nations in green where landing permits are required. EIG dual use cable system for telecommunications and marine scientific research (MSR) show additional nations in red where MSR permits would be required to lay and maintain the system in the Exclusive Economic Zone (EEZ) of non-landing nations. Europe India Gateway (EIG) international telecommunication cable system (2011) showing nations in green where landing permits are required. EIG dual use cable system for telecommunications and marine scientific research (MSR) show additional nations in red where MSR permits would be required to lay and maintain the system in the Exclusive Economic Zone (EEZ) of non-landing nations.

18 THE DIFFERENCE: AAG CASE STUDY

19 THE DIFFERENCE: AAG CASE STUDY

20 EXAMPLES OF USE OF MSR IN CABLES THAT MAKE PRACTICAL SENSE OUT-OF-SERVICE CABLES CABLES ALREADY IN USE WITH THE EXPLORATION OF NATURAL RESOURCES SINGLE USE MSR APPLICATIONS (I.E. THE NEPTUNE SYSTEM IN CANADA)

21 QUESTIONS? Perth