Submarine Internet Cables - By Pablo Latorre

Overview

Submarine cables are the tangible but invisible backbone of the Internet, carrying the 99% of the world’s intercontinental traffic (1). However, its institutional governance is fragmented and combines international law, national law, industry self-regulation, and multi-stakeholder coordination. The following four institutions illustrate its regime:

1. International Telecommunication Union (ITU)

ITU is the United Nations (UN) agency specialized in communications and information technologies. Its authority emanates from the international treaty that created it in 1865 and its constitution and convention (2). ITU participates in the governance of cables through its International Advisory Board on Submarine Cable Resilience, a multi-stakeholder platform co-founded with the International Cable Protection Committee (ICPC) (3). The Advisory Board governs by recommendations and coordination frameworks which aim to optimize cable construction, installation, maintenance, and security. In this sense, it promotes global digital connectivity, equitable access for developing countries, and resilience of critical Internet infrastructure. However, its instruments are not mandatory: governments/States comply voluntarily and cable operators are not subject to enforcement mechanisms (4).

2. International Cable Protection Committee (ICPC)

ICPC is a non-profit organization of cable manufacturers, operators, and owners as well as governments/States (5). ICPC participates in the governance of cables by publishing guidelines, recommendations, and standards for cable installation, protection, and repair (6). In this sense, it promotes industry-government/State collaboration on cable resilience. However, it has no authority to impose mandatory regulations and its publications lack legal force.

3. Coastal States under the Convention on the Law of the Sea (UNCLOS)

Under UNCLOS, coastal States exercise full sovereignty over their territorial waters. Any cable seeking to land on national shores requires a coastal State license (7). Coastal States participate in the governance of cables by issuing landing licenses along with other permits required for cables to cross territorial waters and landing onshore. In this sense, they promote State sovereignty and national interests. However, coastal States regulations can significantly vary, creating fragmentation in cable governance (8).

4. Federal Communications Commission (FCC) of the United States (US)

Although the US is the country with largest number of cables and a coastal State, it is not regulated by UNCLOS since it never ratified the treaty. Instead, the US participates in the governance of cables through the FCC and its authority over cable landing on US shores, which includes national security analysis. Since 2020, the FCC has designated China, Iran, Russia, and other countries as “foreign adversaries” denying landing licenses to applicants controlled by or subject to these adversaries (9). In this sense, the FCC promotes US national security. Such measures have no analogy in UNCLOS which does not authorize coastal States to exclude on grounds of country of origin. However, since the US is not a party of UNCLOS, it is not bound by its dispute‑resolution mechanisms. This contributes to enlarge the fragmentation in cable governance.

Governance Gap

No institution exercises authority over the complete lifecycle of cables (from route planning to decommission). Therefore, cable governance is unharmonized: over-regulation in some points and under-regulation in others.

References

(1) https://issuu.com/subtelforum/docs/almanac_issue_51

(2) https://www-itu-int.translate.goog/en/about/Pages/default.aspx?_x_tr_sl=en&_x_tr_tl=es&_x_tr_hl=es&_x_tr_pto=sge

(3) https://www.itu.int/digital-resilience/submarine-cables/advisory-body/

(4) https://opil.ouplaw.com/display/10.1093/law:epil/9780199231690/law-9780199231690-e514

(5) https://www.iscpc.org/about-the-icpc/

(6) https://www.iscpc.org/about-the-icpc/achievements/

(7) https://www.submarinenetworks.com/en/nv/insights/the-law-of-the-sea-and-subsea-cables-unclos

(8) https://www.iscpc.org/events/2024-law-of-the-sea-workshop/

(9) https://www.submarinenetworks.com/en/nv/insights/the-law-of-the-sea-and-subsea-cables-unclos