Ask the person in the street how internet data is transmitted and they'll probably reference satellites. However, these account for only 3% of global data transmissions. In fact, commercial undersea cables carry about 97% of the world's internet and telecommunications data. These cables are critical to the international financial and banking sectors, commercial trade, defence data and daily usage. There are approximately 448 submarine cables laid beneath the sea worldwide.1 These carry over $10 trillion of financial transfers and vast amounts of data and email traffic.
Reliance on global high speed telecommunications is higher than ever. As the demand for improved services grows, so too does the demand for supporting infrastructure. It is predicted that the submarine cable market will grow at a CAGR of 15.32% from $8.12 billion USD in 2018 to $16.56 billion USD by 2023.2 The need for new submarine cables is particularly high in the Asia Pacific, European and North American regions. Companies like Google and Facebook are collaborating on projects to deliver subsea infrastructure projects in high-demand regions.
The provision of faster, more reliable and cheaper Internet access is also crucial to advancing commerce, education and healthcare, particularly in developing countries. Over the last 24 months, new submarine cables have been planned for connection to various countries in the South and Central Pacific region (including the Coral Sea Cable Network connecting Australia, Papua New Guinea and Solomon Islands, which is partially funded by the Australian government).3
VULNERABILITY AND DISRUPTION
The high cost of construction of undersea cable infrastructure means the projects are often financed by private consortia (rather than government). As repairing the cables is also an expensive exercise, protection of the cable infrastructure itself is important, particularly for cable owners. Historically, most damage to submarine cable infrastructure arises from natural disasters (such as earthquakes, tsunamis and typhoons or cyclones) and from fishing and shipping activities (with damage from anchors). In some cases, submarine cables have been stolen to be on-sold as scrap material. Between August 2006 and March 2007, 500 kilometres of cable connecting Vietnam with other countries was stolen. As a consequence, 82% of data traffic to Vietnam was lost for three months.4
Whilst redundancy allowance and signal re-routing allows for a level of transmission interruption without catastrophic consequences, such disruption can still often result in slower speed signal transmission and congestion in the network.
As compared to other maritime activities such as shipping, submarine cables have inadequate protection under international law.
The only applicable international convention is the 1982 United Nations Convention on the Law of the Sea (UNCLOS), but the provisions are inadequate for the security of submarine cables. Article 113 provides that states shall adopt laws and regulations necessary to make wilfully or negligently breaking or injuring a submarine cable in the high seas by a ship flying that state's flag or by a person subject to its jurisdiction an offence. However, UNCLOS only applies to the nationals of that particular state, and not to foreign nationals, making it is difficult to enforce.
Comparatively, Australia is relatively advanced in implementing legislation to protect submarine cables in its exclusive economic zone, including having cable protection zones. However, these zones do not extend to international waters.
- Schedule 3A of the Telecommunications Act 1997 (Cth) provides that protection zones may be declared over submarine cables installed in Australian waters.5 Specific activities, such as fishing using a line, are prohibited in protection zones.6 There is also a more general prohibition on any activity involving a risk that an object will connect with the seabed that would be capable of damaging the cable.7 There is a stringent penalty framework, with a person damaging a submarine cable in a protection zone liable for imprisonment for 10 years or 600 penalty units, or both.8
The Telecommunications Act 1997 (Cth) was recently amended to impose a duty on carriers and carriage service providers (CCSPs) to do their best to protect telecommunications networks and facilities from unauthorised interference or access for the purpose of security.9 CCSPs are required to disclose any changes to telecommunications services or systems that are likely to have a material adverse effect on the CCSPs capacity to comply with this duty.10 The legislation also empowers the Attorney General to direct CCSPs where there is risk of unauthorised interference with, or access to, telecommunications networks or facilities that would be prejudicial to security.11
- While the recently enacted Security of Critical Infrastructure Act 2018 (Cth) applies to electricity, port, water and gas assets, its recent introduction reflects Australia's growing concerns about protecting the highest risk critical infrastructure assets from sabotage and espionage from foreign parties.
In a constantly changing geo-political environment, concerns are being raised about cables and onshore landing sites becoming a target for deliberate security attacks (including terrorism), cyber-attacks by 'unfriendly' nations, as well as physical damage to the infrastructure.12
It is timely to revisit international arrangements, as protection for submarine cable infrastructure is inadequate. The Council for Security Cooperation in the Asia Pacific recommended measures for countries to adopt, as there is currently no international legal regime to address security issues that affect submarine cable networks.13
Some of the recommendations by CSCAP:
- countries to join the International Cable Protection Committee;
- countries to coordinate and develop regional protocols to facilitate prompt cable repairs and standard procedures for notifying cable breaks or suspicious activities; and
- tabletop exercises to deal with those cable breaks and threats in regional multilateral exercises.
There is potential to enhance protection of submarine cables through existing bilateral and multilateral arrangements. In March 2018, Australia and ASEAN leaders signed a Memorandum of Understanding on Cooperation to Counter International Terrorism14. With a particular focus on technology enabled terrorism, the MoU emphasises a commitment to cross-border collaboration to develop adequate counter-terrorism frameworks. Further developments in this area focussed on potential terrorist threats to submarine cable infrastructure and will assist in enhancing regional security. Additionally, there is the broader question of whether individual governments ought to deploy resources (such as the navy) to monitor submarine cables as a means of protection from a potential terrorist attack.
Until a more stringent international regime is adopted, it is important that parties consider the importance of contractual arrangements to minimise the effects of physical damage to submarine cables. From a legal perspective, in particular, under IRUs (indefeasible rights of use) which owners sell capacity to network carriers for transmission of data, it is important to ensure that contractual parties have adequate relief from the disruption of data traffic as a result of damage to submarine cables. Force majeure clauses operate to exclude a party's contractual obligations if defined unforeseen events or conditions occur for the duration of the event. The magnitude of risk involved may be partly managed through a comprehensive force majeure clause.15
1 https://www2.telegeography.com/submarine-cable-faqs-frequently-asked-questions (last accessed 6 August 2018).
2 Submarine Power Cable Market, By Type, Voltage, Conductor Material, End-User, & Region-Global Forecast To 2023 June 2018
(last accessed 6 August 2018);
(last accessed 6 August 2018);
http://www.abc.net.au/news/2018-07-12/australia-solomon-islands-png-sign-undersea-cable-deal/9983102 (last accessed 6 August 2018).
4 Cyberspace in Deep Water: Protecting
Undersea Communication Cables;
(last accessed 6 August 2018);
https://www.computerworld.com/article/2541664/networking/fishermen-pull-the-plug-on-vietnam-s-web--steal-cable-for-scrap.html (last accessed 6 August 2018).
5 Section 4 of Schedule 3A.
6 Section 11(3)(c) of Schedule 3A.
7 Section 11(3)(g) of Schedule 3A.
8 Section 36(1) of Schedule 3A.
9 Section 313(1A) Telecommunications Act 1997 (Cth).
10 Section 314A Telecommunications Act 1997 (Cth).
11 Section 315A Telecommunications Act 1997 (Cth).
12 The Public-Private Analytic Exchange Program (AEP), sponsored by the Department of Homeland Security's Office of Intelligence and Analysis (DHS/I&A), Threats to Undersea Cable Communications September 2017 https://www.dni.gov/.../1---2017-AEP-Threats-to-Undersea-Cable-Communications.pdf.
Tara Davenport, Submarine Cables, Cybersecurity and International Law: An Intersectional Analysis, 24 Cath. U. J. L. & Tech (2016). http://scholarship.law.edu/jlt/vol24/iss1/4.
Rishi Sunak MP, Undersea Cables, Indispensable, insecure https://policyexchange.org.uk/wp-content/uploads/2017/11/Undersea-Cables.pdf.
13 CSCAP MEMORANDUM NO. 24 Safety and Security of Vital Undersea Communications Infrastructure May 2014.
15 There is no law doctrine of force majeure in common law jurisdictions. The interpretation of a force majeure clause will conform to the ordinary rules of construction within its contractual context and factual matrix. For recent case law on force majeure clauses in various common law jurisdictions, see for example Yara Nipro P/L v Interfert Australia P/L  QCA 128; Carboex S.A. v. Louis Dreyfus Commodities Suisse S.A.  EWCA Civ 838; Wal-Mart Canada Corp v Gerard Developments Ltd, 2010 ABCA 149,  AWLD 2475; Alliance Concrete Singapore Pte Ltd v Sato Kogyo (S) Pte Ltd,  SGHC 127
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