Areas of Marine Jurisdiction Review & Update on the Legal Framework Influencing Submarine Telecommunications Marine Activities

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1 Areas of Marine Jurisdiction Review & Update on the Legal Framework Influencing Submarine Telecommunications Marine Activities Professor Robert Beckman Director, Centre of International Law, University of Singapore Douglas Burnett Partner, Squire Sanders & Legal Advisor to the ICPC Graham Evans Director, EGS Survey Group

2 Discussion Topics Areas of marine jurisdiction and UNCLOS Interpretation, application & enforcement of legal rights accorded under UNCLOS Marine jurisdictional creep, including Encroachment on traditional rights Cabotage Imposition of import duties Environmental legislation

3 Discussion Topics Marine operations Defining marine operational milestones Marine operational permitting Permitting & impact on project operational planning & scheduling Permitting lead-time variations

4 Graham S Evans Based in Australia, Graham is a Director of the EGS Survey Group of companies with particular responsibilities for the Group s activities in the submarine telecommunications business. Graham has been an active participant in the submarine telecommunications community for more than 22 years and has more than 36 years experience as a marine geoscientist. Graham is the EGS representative for the ICPC and represents EGS on the SubOptic Executive Committee Photo Graham S. Evans Director, EGS Survey Group gevans@egssurvey.com

5 Marine Jurisdiction Areas & Marine Operations The route survey is the first activity to test the integrity of marine operational permitting processes within the jurisdictional areas through which the cable route passes Operational permits required for performing a submarine cable route survey are essentially the same as any other survey activity within the Territorial Seas and Exclusive Economic Zone for any given coastal state s jurisdiction. However, Securing permissions to carry out survey, installation or maintenance operations do vary from coastal state to coastal state from straightforward to highly complex and with permit lead-times measured in days to many months

6 Marine Jurisdiction Areas & Marine Operations Agencies regulating the issuing and or the authorising of operational permits typically include: Port authorities for routes passing through a gazetted port authorities jurisdiction Hydrographic office and or navy having responsibility for charting and navigation within the state s maritime jurisdiction Government ministries which may include those with responsibility for, security, defence, foreign and home affairs; transport, communications, environment, energy and fisheries Underestimating permitting issues is an increasing and frequent cause of project delays, missed project milestones and cost overruns

7 Marine Jurisdiction Areas & Marine Operations Predicting permit lead times has become less reliable; possible factors: Lack of established process within regulatory agencies The number of systems being permitted following similar routes overwhelming what processes exist Regulatory inefficiency Politics associated with competing systems landing in the same country serving the same market Actual failure by permit applicants to fully comply with regulatory processes Unilateral changes in regulatory requirements during on-going permitting process Understanding the operational permitting environment within the marine jurisdictional areas traversed by the cable route is therefore critical when defining project milestones

8 Marine Jurisdiction & Project Milestones How are these decided? Presumably by the Purchaser s Management Team based on Project concept Requirements of investors Output from the Business Model Feasibility Study research System topology Number of marine jurisdictional areas crossed by the system Geopolitical context Understanding of performance levels of supply contractors

9 Marine Jurisdiction & Project Milestones Are they realistic? Will depend on precedent and experience of the project management team Quality/reliability of the Feasibility Study Detailed understanding of the prevailing marine jurisdictional environment for the planned system Timely engagement and discussions/permit negotiations with landing and non landing party regulators/permitting agencies Actual performance of supplier, surveyor and installer Geopolitical influence/interference Seasonal weather patterns Unpredictable events occurring within the operational area

10 Defining Marine Operational Milestones Schedule Interdependencies Permitting Availability of PiPs for landing and non landing countries Availability of marine operational permits Pipeline and cable crossing agreements Agreement with hydrocarbon operators on entry and exit points and routing within blocks Availability of social and environment assessments where required Approval of cable route by Purchasers and regulatory agencies Security clearances in place and valid for time of operation Compliance with cabotage and vessel importation requirements Variations in relative permitting lead-times Changes in the security environment

11 The Supply Contract & Project Milestones Key project milestones and Plans of Work are agreed during supply contract negotiations What influences these agreements? Establishing a competitive advantage Precedent Project risk assessment Assumptions that past experience equates to future expectations That information provided by MT or through independent research is accurate, reliable and/or will remain constant during the execution of the contract That the Purchasers can or will deliver on program interdependent obligations implicit under their responsibilities

12 Marine Operations & Jurisdictional Creep Cabotage designed to protect the interests of national domestic shipping; the principle impact being the requirement to use that nations flagged vessels or reflag own assets Vessel importation requirement for vessels engaged in marine operations to be imported requiring duty to be assessed and paid Environmental regulation requirement for social and/or environmental impact assessments pre marine operations Security requirement for technical team and vessel crew to undergo security checks Immigration restrictions on certain nationalities in technical team and/or vessel crew; and even the country where marine operations company is registered Mandate for work be conducted by national research institutes

13 Marine Jurisdiction Impacts on Project Programs & Planning Along route variations in permit lead times can lead to planning and implementation phase dislocation if not properly sequenced Minimal when dealing with domestic national systems Most complex for long haul international systems with highly variable national jurisdictional requirements The impact of permit interdependency within and between jurisdictional areas may result in project delays and cost overruns The impact of routing through non landing country jurisdictions: Can lead to protracted negotiations when routes are through territorial seas Complexities when jurisdictional agencies approached late or not at all; or when unpredicted changes or routing requirements imposed Problems associated with conflicts with UNCLOS protocols for coastal states that have ratified UNCLOS

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15 Days from ocean to cloud Along Route Permit Lead Time Variations A B C D E F G H I Cable Route

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32 Robert C Beckman Expert on ocean law and policy issues in Southeast Asia, including the South China Sea and Straits of Malacca Head of CIL Research Project on Submarine Cables and the Law of the Sea Co-Editor of forthcoming Submarine Cables: Handbook of Law and Policy See CIL Research Projects on CIL website: Director, Centre for International Law, National University of Singapore Professor, Faculty of Law cildir@nus.edu.sg

33 Regulation of Cables under UNCLOS Rights of States to regulate cables and obligation of States to protect cables depends upon where the cables are located: 1. Zones subject to sovereignty territorial sea and archipelagic waters 2. Zones outside sovereignty EEZ, continental shelf, high seas and deep seabed 33

34 LEGAL REGIMES OF THE OCEANS AND from ocean to cloud AIRSPACE 8/9/01 42

35 Laying and Repair Cables in the Territorial Sea Coastal States have wide discretion to adopt laws on the laying and repair of cables in territorial sea Protection Coastal States have the right to adopt laws to protect cables in territorial sea, including right to regulate ships exercising innocent passage Coastal States have no obligation to adopt laws and regulations to protect cables in the territorial sea 35

36 Existing cables from ocean to cloud Cables in Archipelagic Waters Archipelagic States must respect existing cables laid by other States which pass through its archipelagic waters, and must permit the maintenance and replacement of such cables [Art 51] Laying and repair of new cables The laying and repair of new cables is subject to consent regulation of the archipelagic State Protection of cables As in territorial sea, there is no legal obligation to protect cables 36

37 Indonesia Archipelagic Waters & EEZ 37

38 High Seas and Submarine Cables The right to lay submarine cables is a high seas freedom that may be exercised by all States [Art 87] The right to lay cables must be exercised with due regard to the rights of other States, such as the freedom of navigation [Art 87(2)] When laying submarine cables, States shall have due regard to cables or pipelines already in position. In particular, possibilities of repairing existing cables or pipelines shall not be prejudiced. [Art 112, 79(5)] 38

39 Specific Legal Regime of EEZ Extends to 200 M from baselines Not under sovereignty of coastal States / not part of the high seas Specific Legal Regime in which sets out: [Art 55] Rights, jurisdiction & duties of coastal States [Art 56] The rights and duties of other States [Art 58] Coastal States have the sovereign right to explore and exploit the natural resources, including the resources of the sea-bed and subsoil [Art 56] Other States have the right to exercise high seas freedoms including freedom of navigation and freedom to lay cables and pipelines [Art 58] 39

40 EEZ Regime Coastal States must give due regard to rights of other States when exercising their sovereign rights over the natural resources [Art 56(2)] Other States must give due regard to the rights and duties of the coastal State when exercising their rights such as the freedom to lay cables [Art 58(3)] The sovereign rights of the coastal State in the EEZ with respect to the seabed and subsoil shall be exercised in accordance with Part VI of UNCLOS on the continental shelf. [Art 56(3)] Therefore, rules on cables in EEZ and on Continental Shelf are essentially the same 40

41 LEGAL REGIMES OF THE OCEANS AND from ocean to cloud AIRSPACE 8/9/01 42

42 Continental Shelf Regime The continental shelf comprises the seabed and subsoil of the submarine areas that extend beyond its territorial sea throughout the natural prolongation of its land territory to the outer edge of the continental margin, or to a distance of 200 nm [Art 76] Coastal States have sovereign rights for the purpose of exploring it and exploiting its natural resources [Art 77] The exercise of the rights of the coastal State over the continental shelf must not infringe or result in any unjustifiable interference with navigation and other rights and freedoms of other States as provided for in this Convention [Art 78] 42

43 Cables on the Continental Shelf All States have a right to lay submarine cables on the continental shelf [Art 79(1)] As on high seas, States shall have due regard to cables or pipelines already in position, and the repair of existing cables shall not be prejudiced [Art 79(5)] The delineation of the course for the laying of cables on the continental shelf is NOT subject to the consent of the coastal State [Art 79(3)] [Unlike pipelines] 43

44 Cables in EEZ and on CS Same rules apply to laying of cables in the EEZ and on the continental shelf Article 79(2): The coastal State may not impede the laying or maintenance of cables subject to its right to take reasonable measures for: 1. the exploration of the continental shelf; 2. the exploitation of its natural resources; and 3. the prevention, reduction and control of pollution from pipelines [but not pollution from cables] 44

45 Cables on Continental Shelf Major interests of Coastal States are to ensure that other States do not infringe their sovereign right to the natural resources or conduct marine scientific research without its consent [Art 246] Some states (e.g., China) are also concerned with activities on the shelf which infringe its security interests Since the coastal State can take reasonable measures for the exploration of the shelf, it arguably can regulate cable ships in order to ensure that they do not infringe their sovereign rights to the natural resources (e.g., that they are not in fact surveying or doing research on the natural resources of the shelf) 45

46 Limits on Freedom to Lay Cables The obligation in Part V to give due regard to the rights and duties of coastal States in the EEZ, including right to manage & conserve fisheries right to exploit hydrocarbon resources right to use energy from winds & waves right to consent to marine scientific research Right of coastal States to take reasonable measures for the exploration of the continental shelf and the exploitation of its natural resources [Art 79(2)] 46

47 Due Regard & Duty to Cooperate Can be argued that the potential conflict in uses requires that the cable company, in order to exercise its due regard obligation, to notify and consult with user States on how it will exercise its rights But Cable Company could challenge any permit requirement of the coastal State, as this implies that the coastal State has the authority to deny a permit 47

48 Challenging Coastal State Regulations It is very difficult for industry to challenge the regulations of coastal States because UNCLOS rights and obligations are with States, not private companies If a dispute arises on whether the laws and regulations of a coastal State (1) infringe or unjustifiably interfere with the right to lay cables or (2) fail to give due regard to the right to lay cables, such a dispute would be subject to compulsory binding dispute settlement under Part XV of UNCLOS However, the dispute must be a dispute between States, and the State whose right to lay cables has been interfered with would have to bring the case 48

49 Maritime Boundary Issues UNCLOS rules assume that maritime boundaries have been defined by boundary agreements Special problems arise because of: 1. Undefined Maritime Boundaries 2. Overlapping Maritime Boundaries 3. Unclear maritime claims (eg, China) Boundary issues can greatly complicate the notice and permit process

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52 Douglas R Burnett ICPC International Cable Law Advisor since 1999 Partner, Transportation, Shipping & Logistics group, Squire Sanders (US) LLP Over 32 years of experience in international and maritime law. Testified as subject matter expert before the US Senate Foreign Relations Committee on UNCLOS Author of over 20 articles on submarine cables and international law Captain U.S. Navy (ret.) Photo Douglas R Burnett Partner, Squire Sanders Douglas.Burnett@squiresanders.com

53 Natural Resources Coastal State has jurisdiction over its natural resources in the EEZ and on its continental shelf (Art. 77) Natural resources include oil, gas, minerals, and marine species belonging to sedentary species (Art. 77) Production of energy from the water, currents and winds in the EEZ (Art. 56) Artificial Islands, installations, and structures (Art. 56)

54 Marine Scientific Research (MSR) 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.

55 Marine Scientific Research (MSR) Coastal State has jurisdiction over MSR in its EEZ. MSR is not defined in UNCLOS Activities undertaken in the ocean and coastal waters to expand knowledge of the marine environment for peaceful purposes and includes oceanography, marine biology, geological. geophysical scientific surveying as well as other activities with a scientific purpose (possible working definition from Definitions for the Law of the Sea, Terms not defined by the 1982 Convention The problem is that MSR is defined by the coastal State.

56 Surveys which are not MSR Hydrographic surveys What is due regard Military surveys (as long as peaceful) Cable route surveys (?) Pure vs applied research Cable route survey and repairs part of the operations associated with the freedom to lay and maintain cables (Art and 78.2)

57 Comparing MSR and Cables 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 CONTINENTAL SHELF. SO HOW DOES THAT COMPARE WITH UNCLOS CABLE PROVISIONS? 57

58 THE DIFFERENCE: EIG CASE STUDY Europe India Gateway (EIG) international telecommunication cable PLACE HOLDER FOR system SLIDE (2011) showing TO BE nations RECEIVED in green where landing FROM permits are required. AT&T 58

59 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. 59

60 Beyond Coastal State Encroachment - OSPAR and the high seas OSPAR is the OSlo and PARis Conventions for Protection of the Marine Environment of the North-East Atlantic d/b/a Ocean Special Police And Regulator? State representative are from ministries of environment Treaty signed in 1992, entered into force in 1998, currently 15 State parties + EU 00_000000

61 OSPAR REGION

62 THE OSPAR APPROACH OSPAR issued Guidelines on Best Environmental Practice (BEP) in Cable Laying and Operation (Agreement ) in June ( BEP Guidelines ) Covers all off-shore power cables and telecom cables in OSPAR region, including EEZ and high seas! OSPAR never consulted any telecom or power cable owners or operators or industry groups such as CIGRE, ICPC, the DKCPC, or the UKCPC [Subsea Cables UK] Scientific basis for guidelines is weak-largely based on the work of two German scientists from experiences in the Wadden Sea. Papers cited are largely not peer reviewed and any scientific papers that did not support the goals are not included. Legal basis appears to be weak as well because of conflicts with the United Nations Law of the Sea Convention (UNCLOS) and its provisions for the freedom to lay and maintain cables outside of territorial seas.

63 BEP GUIDELINES USES LACK OF EVIDENCE TO JUSTIFY REGULATIONS Emphasis on oil leak risks from power cables even though since the 1990 s modern ocean power cables use mass impregnated paper or XPLE (cross linked polyethylene) for insulation. Claims modern cable installation techniques like burial may have a lethal effect on some species. Cites lack of knowledge of noise impacts on fauna. Cites lack of knowledge of heat impacts from cables on benthic species. Cites electromagnetic impacts on the orientation of fish and marine mammals. Heavy reliance of lack of data to justify regulations under the precautionary principle. Ignores the over 162 years of lawful use of cables in the ocean that have never led to the loss or irreversible decline of a single species. (1811 First Submarine power cable; 1850 First submarine telecom cable).

64 BEP GUIDELINES THAT DEPART FROM REALITY Environmental Monitoring Along The Entire Route Of The Cable EIA Required For All Cables Mitigation In The Form Of Compensation Bundling Of Existing Cables And Pipelines Cable Route Selection Based On Avoiding Habitats Of Species Sensitive To Physical Disturbance Horizontal Drilling Favored To Avoid Damage Mattresses Should Be Made Of Natural Stone. Remove Vegetation Before Laying And Replant After Laying No Blasting With Explosives As A Burial Techniques Burial Required To Depth Of 1-3 Meters To Reduce Heat Impacts Cables Should Be Removed After They Are Out Of Service All Environmental Data Should Be Made Public

65 Thank You Questions Please

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