16 Oct The Final Frontier of Cyberspace: Ensuring that Submarine Data Cables are Able to Live Long and Prosper (Part I)
[Tamsin Phillipa Paige is a Lecturer at Deakin Law School. Douglas Guilfoyle is an Associate Professor at UNSW Canberra and Rob McLaughlin is a Professor at the Australian National Centre for Ocean Resources & Security, University of Wollongong.]
In early 2008 careless mooring of a ship off the coast of Egypt, to avoid inclement weather, broke a submarine data cable and caused an internet blackout for approximately 75 million people and reduced phone and internet connectivity by up to 70% in numerous countries in the region. This incident highlights the fragility of the submarine data cables that are the backbone of global internet stability. Given that estimates of the economic volume of internet transactions range from between US$5 trillion and US$10 trillion a day to US$120 trillion in global GDP value annually (without even considering the significant reliance of social infrastructure on internet connectivity), it is of critical importance to understand how the law operates to protect submarine data cables from damage. (There are also questions regarding cable damage on the seabed beyond national jurisdiction, but that is beyond the scope of these posts). Unfortunately, as recently noted by James Kraska, the international law governing submarine data cables is scant, antiquated, and no longer fit for purpose. In part one of this two-part blog series we will explore how international law theoretically could address questions of peacetime damage to submarine cables (by state and by non-state actors), how the Security Council might address intentional severing of a submarine cable, and whether that intentional severing of a submarine cable by a state or a recognised belligerent would constitute an armed attack under Article 51 of the UN Charter. Part two will explore how the laws of armed conflict (LOAC) and the laws of naval warfare (LoNW) will (or more possibly should) treat submarine data cables for the purposes of targeting in military operations.
Wilful or Negligent Damage by Vessels
While Article 2 of the 1884 Paris Convention for the Protection of Submarine Telegraph Cables (Paris Convention), and Article 113 of the UN Convention on the Law of the Sea (UNCLOS) create an obligation for a state to criminalise wilful or negligent damage by vessels permitted to fly its flag, neither of these instruments addresses the issue of financial liability or state responsibility for such damage. We suggest that damage caused by interference with submarine data cables that does not meet the threshold of criminal behaviour (for private actors), or armed attack (for state actors) – both of which we will discuss anon – will give rise to flag state responsibility for damages equal to the financial harm caused. The caveat is that such responsibility is an obligation of due diligence only: where it can be shown that all care was taken, or the damage to the data cable was not reasonably foreseeable, liability will not arise. The principles underpinning this argument are those found in the Trail Smelter arbitration.
While the arbitration itself is concerned with transboundary harm caused by air pollution, it has been generally treated as establishing a norm of international law regarding state responsibility for transboundary harm generally. As such it is easy to see how the issue of transboundary harm (and state responsibility) in the case of pollution can be analogised to transboundary harm arising from damage caused to submarine cables. We argue, in line with Trail Smelter, that losses caused by damage to submarine cables render the flag state responsible for the vessel that caused the damage liable not only for the cost of repairing the cable, but all losses stemming from the cable damage. For the most part the question of attribution is a simple one under the law of the sea because of the nature of exclusive flag state jurisdiction set out in Article 92 of UNCLOS. (Indeed, the extent of this jurisdiction has been interpreted very broadly in recent cases including Norstar and Enrica Lexie.) As a ship is a jurisdiction unit attached to its flag State, liability for injurious acts undertaken by or emanating from the ship could also be attributed to the flag state on the basis of the Corfu Channel principle.
This application by analogy of Trail Smelter to unintentional peacetime damage to submarine cables is consistent with the ILC draft articles related to International Liability for Injurious Consequences Arising Out of Acts Not Prohibited by International Law. It is worth noting that the notion of liability under international law for damage caused within the territory of another state can, and should, be limited to situations in which the responsible state cannot show that they took all reasonable steps and exercised due diligence to prevent it.
Intentional damage by Non-State Actors
Absent a more effective international regime of protection the question has occasionally been raised as to whether intentional damage to submarine cables on the high seas should or could fall within the definition of piracy. An advantage of such an approach is that it would come with universal jurisdiction, or more accurately concurrent municipal jurisdiction, to prosecute the offence and powers of visit, board, search, and arrest for government vessels encountering suspect ships outside the territorial sea. Such a result might follow insofar as piracy covers, under both the 1958 Geneva Convention on the High Seas Article 15 and UNCLOS Article 101(a) not only acts of violence on the high seas committed from one vessel against another but also:
any illegal acts of violence … or any act of depredation, committed for private ends by the crew or the passengers of a private ship … and directed: … (ii) against a ship, aircraft, persons or property in a place outside the jurisdiction of any State[.] (Emphasis added.)
On its face, deliberately damaging a section of submarine cable outside the territorial sea would be an act of violence or depredation against property in a place beyond any State’s jurisdiction meeting the Article 101(a)(ii) definition of piracy. It is worth noting that while this would cover private actors operating for political ends, it would not cover non-state actors that are belligerents in a non-international armed conflict, as their actions would be considered public in nature. However, caution is needed when considering this limitation given the tendency to rhetorically label belligerent groups as terrorists for political purposes.
Cable Cutting and Threat to the Peace in Article 39
Paige’s work in 2019 demonstrated that each of the P5 have an individually consistent understanding of what constitutes a ‘threat to the peace’ under Article 39 of the Charter. However, it is worth noting that history tells us that regardless of this consistency, P5 members will veto out of hand any action that addresses their conduct. A common question noted in P5 approaches to the existence of a ‘threat to the peace’ is whether the situation at hand has sufficient gravity to warrant such a finding. While gravity is inherently amorphous and difficult to define, it would be difficult to suggest that the intentional severing of a submarine cable would fail to meet this threshold. In addition to the economic impact noted, there is substantial evidence indicating society has a significant dependence on Internet infrastructure for many aspects of day-to-day activity. This dependence – and the consequent injury from severance – is amplified for those states reliant upon a single submarine data cable for Internet connectivity. Given that cutting off Internet access to a state through severing a submarine cable, the backbone of the Internet, would put at risk all of these societal infrastructures we would argue that the question of gravity has been self-evidently met.
The biggest hurdle to a Security Council finding of ‘threat to the peace’ from severing a submarine cable would be gaining the support of China and Russia. France, the UK, and the US have demonstrated a propensity to vote in accordance with rhetoric, supporting actions designed to uphold individual human rights and civil liberties. That propensity, combined with the fact that access to the Internet was (at least implicitly) added in 2016 to the freedom of expression and access to information found in Article 19 of the Universal Declaration of Human Rights, means those countries would be unlikely to block such a resolution. Therefore, persuading Russia and China would be the critical step. Such persuasion would require showing that any proposed action in response to the intentional severing of a submarine cable is: a) within the Security Council’s mandate for the maintenance of international peace and security; b) supports, or is not unreasonably violating, the right to self-determination and non-interference of the state targeted by any resolution; and c) that any resolution put before the Security Council is focused upon generating a peaceful outcome and not upon regime change. We are of the view that the last point in the list is the most significant, given the recent history of members of the P5 attempting to use the Security Council as a vehicle for legitimating regime change.
Is Cable Cutting an Armed Attack?
In considering whether an incident resulting in severing a submarine cable constitutes an ‘armed attack’, giving rise to individual or collective self-defence under Article 51, the leading legal authority remains the Oil Platforms case. Oil Platforms, following Nicaragua, makes it clear that the question whether an incident constitutes an armed attack (rather than some lesser use of force) is a question of fact. When considering whether or not this threshold has been met, the test to be applied is the ‘scale and effects’ test. While the severing of a submarine cable is a physical incident, the scale of harm question would still be the appropriate test in determining whether or not a ‘purely cyber’ attack has risen to the level of an armed attack.
As noted, the potential scale of harm to a state, or group of states, resulting from severing a submarine cable is potentially catastrophic. We live in an age where the Internet constitutes critical infrastructure for many (possibly almost all) aspects of society. Reliable internet access has become a key necessity for, inter alia, economic activity, education, political involvement, and provision of government services. Such internet access is underpinned by submarine cables. Unlike a cyber-attack which may have a temporary and discrete impact on one or more of these key social function, severing a submarine cable is almost guaranteed to cause long-term disruption to all such services to a whole region. Given this wide scale impact, it is almost impossible to characterise the intentional severing of a submarine cable as anything other than an armed attack. Perhaps the fact that the first act of both the UK and Germany in World War I was to cut the other’s submarine telegraph cables assists in indicating the legal character to be afforded such conduct.
Part One Conclusion
In this part we have examined: state responsibility for wilful or negligent severing of cables by vessels that fly their flag; how to address cable cutting outside of state jurisdiction as a criminal act; how the Security Council would likely respond to intentional cable cutting by a state actor or belligerent group; and whether such cable cutting could give rise to individual or collective self-defence under article 51 of the UN Charter. We noted at the outset that dedicated laws protecting submarine data cables are not fit for purpose in the modern context. However, what we suggest is that other areas of international law may adequately address the many concerns around the protection of such cables. In Part Two we will address how LOAC and LoNW consider the question of targeting submarine data cables as part of an armed conflict.
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