THE LAW Existing rules and new challenges

1. THE LAWExisting rules and new challenges Workshop on Submarine Cables for Ocean/Climate Monitoring and Disaster Warning

2. Outline • The laying of submarine cables: a traditional use of the seas • Legal framework: The 1982 UN Convention on the Law of the Sea (UNCLOS) • The right to lay submarine cables on the continental shelf: balancing a freedom of the high seas with the sovereign rights of the coastal State • The “reasonable measures” that the coastal State may take for the protection of its rights over the continental shelf

3. Outline (cntd) • New use of submarine cables: integration into a real-time global climate and disaster monitoring system • Re-use of out-of-service cables; attachment of sensors/adding components to existing cables; new generation of dual use/multi-purpose cables • Applicable rules under UNCLOS • “Accessibility” and “availability” of data • Conclusions

4. The laying of submarine cables: a traditional use of the seas • Since 1850, when the first international telegraph link was established between England and France, the objective of laying submarine cables has been the same: to provide and facilitate international telecommunications • The international community has recognized the strategic value of submarine cables and since 1884 has adopted measures for their regulation and protection (c.f. the 1884 Convention for the Protection of Submarine Telegraph Cables)

5. Legal framework: UNCLOS • Many of the provisions of the 1884 Convention were incorporated into the 1958 Geneva Convention on the Continental Shelf and subsequently to UNCLOS, which provides the general legal framework within which all uses and activities in the oceans and seas are carried out and determines the rights and obligations of all States (coastal, flag and port States). • These rules have been examined in detail by the previous speakers. Special reference, however, should be made to the laying of cables on the continental shelf.

6. UNCLOS recognizes the right of all States to lay submarine cables on the continental shelf, but at the same time subjects this freedom to the right of the coastal State to take “reasonable measures” for the exploration of the continental shelf and the exploitation of its natural resources • Although article 79(2) does not specify these measures, it is widely acceptable that the coastal State may require notification to its competent authorities of the planned activity, details of the cable ship and the purported route. Submission of a report at the end of the activities and possibly the presence of an observer onboard may also be required.

7. Cable route surveys • Similar requirements are often imposed by coastal States with respect to cable route surveys to ensure that the vessel is not engaged in the exploration of their continental shelf and the exploitation of its natural resources, including submission of the survey data upon completion of the survey. • Notification is essential also for avoiding interference with other uses under coastal jurisdiction and for issuing all the necessary navigational warnings.

8. At the same time, the national legislation of a small number of States adopts permits requirements for the conduct of surveys and/or the laying of submarine cables on the continental shelf. Finally, some States claim that cable route surveys fall within the notion of “marine scientific research” (MSR) and thus under Part XIII of UNCLOS and the consent regime of the coastal State

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

10. New use of submarine cables • The creation of a cabled real-time global climate and warning system raises two fundamental questions: • First, whether this new use of submarine cables can be considered as falling within the scope of the freedom of laying submarine cables • If not, which is the applicable legal regime under UNCLOS? Is Part XIII (marine scientific research) of any relevance? Will the consent of the coastal State be required in such cases?

11. Second, an equally important issue is that of “accessibility” and “availability” of data. Will all data be freely accessible or should there be exceptions, i.e. for national security reasons or for being related to the exploration and the exploitation of the continental shelf? All these questions wait for an answer before the elaboration and effective implementation of a cabled real-time global climate and disaster monitoring system

12. Nature and scope of activities • We may distinguish between two kinds of projects: • a) Cabled Ocean Observatories, i.e. a where observation sites (i.e. OBS, pressure gauge instruments, seismographs, etc), are linked via submarine cables that will allow data transfer to shore in real time and • b) attachment of sensors and other scientific equipment (i.e. seismometers, underwater microphones, etc.) to existing submarine cables (repeaters, specialized hardware etc)

13. Applicable rules under UNCLOS • In our view, both cases should be considered as falling under the legal regime of marine scientific research. • It is true that UNCLOS does not define the term “marine scientific research” and that there have been heated debates as to whether “hydrographic surveys” and/or the “collection of oceanographic data” are excluded from Part XIII of UNCLOS and the consent regime of the coastal State. • Nevertheless, the installation of cabled ocean observatories and climate change monitoring and disaster warning systems do not appear to raise similar issues.

14. Applicable rules under UNCLOS (cntd) • These activities cannot be interpreted as inherent to the traditional freedom of laying submarine cables or as “an international use of the seas associated with the operation of submarine cables” as provided for in article 58(1) of UNCLOS with respect to the EEZ. • There may even be room for claiming an “abuse of right”, which is specifically prohibited by article 300 of UNCLOS, namely that “States Parties shall fulfill in good faith the obligations assumed under this Convention and shall exercise the rights, jurisdiction and freedoms recognized in this Convention in a manner which would not constitute an abuse of right”.

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

16. Accessibility and availability of data • Major concern for coastal States, especially transit States • Possible exceptions for reasons relating to national security and/or the exploration of the continental shelf and the exploitation of its natural resources • Argo Project: Guidelines for the Implementation of Resolution XX-6 of the IOC Assembly Regarding the Deployment of Profiling Floats in the High Seas Within the Framework of the Argo Programme

17. Accessibility and availability of data (cntd) • “All the data obtained by the Argo Programme floats once they enter the EEZ will be made freely available by the implementer, with the exception of data of direct significance for the exploration and exploitation of natural resources, whether living or non-living, which, to protect its sovereign rights and jurisdiction in its EEZ, the IOC Member whose EEZ the float enters formally requires the implementer not to be distributed’ • EuroSITES. Data policy: “The only complete exception to the principle of free access is when there is a notified issue of positive harm being caused by the release of the data, i.e. to the environment or to national/international security”

18. Thank you for your attention

19. Dr Anastasia Strati Expert Counselor Ministry of Foreign Affairs, Greece Email: astrati@mfa.gr