UNDERSTANDING THE DIFFERENCES UNDER UNCLOS BETWEEN SUBMARINE CABLES AND MARINE SCIENTIFIC RESEARCH

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UNDERSTANDING THE DIFFERENCES UNDER UNCLOS
BETWEEN SUBMARINE CABLES AND MARINE SCIENTIFIC
RESEARCH
Douglas R. Burnett International Cable Law
Advisor, ICPC Partner, Squire, Sanders Dempsey
(US) LLP
ITU Workshop Rome, Italy September 8-9 2011
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PRESENTATION OVERVIEW

• I. SUBMARINE CABLES UNDER INTERNATIONAL LAW
• DIFFERENCES THAT COUNT UNDER UNCLOS FOR A DUAL
  USE TELECOM/MSR CABLE

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UNCLOS (3)
UNCLOS (33)
UNCLOS (57)
3
12
24
200
Nautical
Nautical
Nautical
Nautical
Miles
Miles
Miles
Miles
GCHS (26-30) High Seas
UNCLOS (87,112-115)
High Seas
Territorial Sea
REGIMES CHART
Depth in
Contiguous Zone
meters
Exclusive Economic Zone UNCLOS (58, 113-115)
0
Shelf
edge
O
O
O
c
c
c
e
e
e
a
a
a
n
n
n
1000
2000
Geological
Base of
UNCLOS (79,113-115)
slope
the slope
Geological
L
L
L
a
a
a
n
n
n
d
d
d
3000
GCCS (4)
rise
4000
Oceanic crust (basalt)
Continental crust (granite)
5000
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ADDING MSR TO A TELECOM CABLE MAKES A BIG
DIFFERENCE

• 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.
• COASTAL STATES HAVE SOVEREIGN RIGHTS OVER NATURAL
  RESOURCES AND MSR IN THEIR EEZ AND UPON THEIR
  CONTINENTAL SHELF
• A DUAL USE CABLE (TELECOM AND MSR) IS SUBJECT TO
  THE MSR REGIME (PART XIII).

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A MAJOR RISK

• UNCLOS ART.S 245-246
• 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 CONTINNENTAL
  SHELF.
• SO HOW DOES THAT COMPARE WITH UNCLOS CABLE
  PROVISIONS?

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COASTAL STATE CONSENT REQUIREMENTS

• UNCLOS MSR - COASTAL STATE CONSENT CAN BE
  WITHHELD IN EEZ AND CONTINENTAL SHELF. (ART. 245,
  246)
• Direct significance for the exploitation and
  exploration of natural resources, whether living
  or non-living
• Drilling, use of explosives, introduction of
  harmful substances
• Construction of installations and structures
• Information provided to the coastal State is
  inaccurate
• Prior outstanding obligations to the coastal
  State from a prior research project
• UNCLOS CABLES - NO COASTAL STATE CONSENT
  REQUIRED, JUST A DUE REGARD OBLIGATION. (ART. 58,
  78, 79, 87)

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DESIGNATION OF OFF LIMIT AREAS

• UNCLOS MSR - COASTAL STATE CAN DESIGNATE AREAS IN
  THE EEZ AND ON THE CONTINENTAL SHELF OFF-LIMITS
  FOR MSR FOR EXPLORATION AND EXPLOITATION OF
  NATURAL RESOURCES (ART 246)
• UNCLOS CABLES - AREAS IN THE EEZ AND CONTINENTAL
  SHELF CAN NOT BE PLACED OFF-LIMITS-ONLY
  LIMITATION IS DUE REGARD. (ART 58, 78, 79, 87)

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COASTAL STATE POWERS

• UNCLOS MSR - MSR ACTIVITIES SHALL NOT INTERFERE
  WITH ACTIVITIES UNDERTAKEN BY COASTAL STATES IN
  THE EXERCISE OF THEIR SOVEREIGN RIGHTS. (ART 246)
• UNCLOS CABLES - NO SIMILAR RESERVATION OF RIGHTS
  - ON THE CONTRARY SEVERAL LIMITATIONS ON THE
  COASTAL STATE IMPEDING THE LAYING AND MAINTAINING
  OF CABLES (ART. 58, 79, 87)

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DUTIES TO PROVIDE INFORMATION

• UNCLOS MSR - DUTY TO PROVIDE INFORMATION TO THE
  COASTAL STATE
• NATURE AND OBJECTIVES OF THE PROJECT
• METHODS TO BE USED INCLUDING THE NAME, TONNAGE,
  TYPE AND CLASS OF VESSELS AND DESCRIPTION OF
  SCIENTIFIC EQUIPMENT
• EXPECTED DATE OF VESSEL APPEARANCE AND DEPARTURE
• NAME OF SPONSORING INFORMATION, ITS DIRECTOR, AND
  PERSON IN CHARGE OF THE PROJECT
• EXTENT THAT COASTAL STATE CAN PARTICIPATE OR BE
  REPRESENTED IN THE PROJECT (ART 248)
• UNCLOS CABLES - NO SIMILAR REQUIREMENTS (ART 58,
  78, 79)

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OBLIGATIONS TO ALLOW PARTICIPATION

• UNCLOS MSR - DUTIES OF MSR SCIENTIST
• COASTAL STATE TO PARTICIPATE OR BE REPRESENTED ON
  BOARD VESSELS WITHOUT COST TO THE COASTAL STATE.
  PROVIDE COASTAL STATE WITH REPORTS, PRELIMINARY
  AND FINAL.
• PROVIDE ALL DATA AND SAMPLES TAKEN
• PROVIDE ASSESSMENT OF DATA, SAMPLES, AND RESEARCH
  RESULTS
• INFORM COASTAL STATE OF ALL MAJOR CHANGES IN THE
  RESEARCH (ART 249)
• UNCLOS CABLES - NO SIMILAR OBLIGATIONS (ART 58,
  78, 79)

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RIGHTS OF LANDLOCKED AND GEOGRAPHICALLY
CHALLENGED NATIONS

• UNCLOS MSR - ART 249 RIGHTS ARE ALSO EXTENDED TO
  NEIGHBOURING LAND-LOCKED STATES AND
  GEOGRAPHICALLY DISADVANTAGED STATES PROVIDED THE
  COASTAL STATE DOES NOT OBJECT TO THE
  PARTICIPATION OF QUALIFIED EXPERTS APPOINTED BY
  THE NEIGBORING LANDLOCKED OR GEOGRAPHICALLY
  DISADVANTAGED STATES) (ART 254)
• UNCLOS CABLES - LANDLOCKED STATES OR
  GEOGRAPHICALLY DISADVANTAGED STATES HAVE NO
  RIGHTS TO PARTICIPATE IN A SUBMARINE CABLE
  PROJECT (ART. 58, 78, 79, 87)

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OBLIGATION TO RECOVER OUT-OF- SERVICE CABLES

• UNCLOS MSR - UNLESS OTHERWISE AGREED, OBLIGATION
  TO REMOVE ALL INSTALLATIONS OR EQUIPMENT WHEN
  RESEARCH COMPLETED. (ART. 249)
• UNCLOS CABLES - NO OBLIGATION TO RECOVER
  INTERNATIONAL CABLES NOT IN SERVICE OUTSIDE OF
  TERRITORIAL SEAS. (ART. 58, 78, 79)

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COASTAL STATE POWERS TO SUSPEND OR TERMINATE
SERVICES

• UNCLOS MSR - COASTAL STATE CAN SUSPEND OR REQUIRE
  CESSATION OF MSR FOR FAILURE TO COMPLY WITH ART.
  249 AND THE MSR OPERATION MUST BE TERMINATED
  WITHIN A REASONABLE TIME. (ART 253)
• UNCLOS CABLES - OUTSIDE OF TERRITORIAL SEAS THERE
  IS NO RIGHT BY THE COASTAL STATE TO SUSPEND OR
  REQUIRE CESSATION OF SERVICES OR TERMINATE
  SERVICES UPON NOTICE BY A COASTAL STATE. (ART 58,
  78, 79)

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MARKINGS AND REGISTRY REQUIREMENTS

• UNCLOS MSR - INSTALLATIONS AND EQUIPMENT MUST
  BEAR IDENTIFICATION MARKINGS INDICATING THE STATE
  OF REGISTRY (ART 262)
• UNCLOS CABLES - NO MARKING REQUIREMENTS AND NO
  STATE OF REGISTRY (ART 58, 78, 79, 87, 112)

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THIRD PARTY LIABILITIES

• UNCLOS MSR - LIABILITY FOR DAMAGE CAUSED BY
  FAILURE TO COMPLY WITH MSR REQUIREMENTS AND
  POLLUTION OF THE MARINE ENVIRONMENT (ART. 263)
• UNCLOS CABLES - NO LIABILITY FOR MSR. LIABILITY
  FOR DAMAGE TO OTHER CABLES OR PIPELINES INJURED
  DURING LAYING AND REPAIR (ART. 114, 115)

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THE DIFFERENCE EIG CASE STUDY

• PLACE HOLDER FOR SLIDE TO BE RECEIVED FROM ATT

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THE DIFFERENCE EIG CASE STUDY
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THE DIFFERENCE AAG CASE STUDY
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THE DIFFERENCE AAG CASE STUDY
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EXAMPLES OF USE OF MSR IN CABLES THAT MAKE
PRACTICAL SENSE

• OUT-OF-SERVICE CABLES
• CABLES ALREADY IN USE WITH THE EXPLORATION OF
  NATURAL RESOURCES
• SINGLE USE MSR APPLICATIONS (I.E. THE NEPTUNE
  SYSTEM IN CANADA)

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QUESTIONS?

Perth