Legal Status of Undersea Internet Cables During Armed Conflict Under the UN Convention on the Law of the Sea (UNCLOS).[Part 2 of 2]

Introduction

In an era where global connectivity is indispensable, undersea internet cables serve as the backbone of the world’s digital infrastructure. These submarine cables, laid across oceans and seas, facilitate over 95% of international data traffic, including internet, telephone, and military communications. Given their critical role, the legal framework governing their protection—especially during armed conflict—has become a matter of significant international concern. The primary international legal instrument relevant to submarine cables is the United Nations Convention on the Law of the Sea (UNCLOS).

Submarine Cable Infrastructure: How It Connects Nations

Submarine cables are fiber-optic lines laid beneath the ocean floor, connecting land-based stations in different countries. The process involves:

• Route Planning: Identifying stable seabed areas to minimize environmental and geological risks.
• Cable Laying: Specialized ships equipped with heavy-duty machinery lay cables from shore to shore, sometimes thousands of kilometers long.
• Landing Stations: These are terrestrial connection points where the undersea cable interfaces with national telecommunications infrastructure.
• Cable Repeater Technology: Signal boosters (repeaters) are installed along the cable to ensure high-speed data transmission over long distances.

These cables are often installed in Exclusive Economic Zones (EEZs) and high seas, requiring multinational coordination, particularly when traversing multiple jurisdictions.

Legal Protection of Submarine Cables Under UNCLOS

UNCLOS, adopted in 1982, provides the foundational legal framework for maritime conduct, including the laying and protection of submarine cables. Key provisions include:

• Article 112 – Right to Lay Submarine Cables: All States have the right to lay submarine cables on the high seas and the continental shelf, subject to due regard for existing cables and other activities.
• Article 113 – Liability for Damage: States must criminalize willful or negligent damage to submarine cables, and they are responsible for ensuring penalties against offenders.
• Article 114 – Liability for New Cable Laying: Those laying new cables must avoid damaging existing ones and take reasonable precautions.
• Article 115 – Breaking or Injury Due to Fishing/Anchoring: If a cable is damaged due to legitimate fishing or anchoring, the responsible party is not held liable unless it is shown to be negligent.

While UNCLOS robustly addresses peacetime protections, it does not directly govern the conduct of States during armed conflict, leaving a legal gap that is addressed under separate bodies of law.

Status During Armed Conflict: Intersection with International Humanitarian Law (IHL)

Although UNCLOS governs maritime activities in peacetime, International Humanitarian Law (IHL)—particularly the Law of Armed Conflict (LOAC)—regulates conduct during wartime.

Key Principles Under IHL:

1. Distinction: Combatants must distinguish between civilian and military objects.
2. Proportionality: Attacks must not cause excessive civilian damage relative to anticipated military advantage.
3. Necessity: Any act of war must serve a definite military purpose.

Thus, a submarine cable used solely for civilian internet traffic is generally considered a civilian object, and targeting it without justifiable military need would likely violate IHL.

However, if a cable is used for military communications, it may become a lawful military target, provided the attack complies with the principles of necessity and proportionality.

Legal Ambiguity and Strategic Vulnerability

Despite being critical infrastructure, submarine cables lack comprehensive protection under a specific wartime treaty. Some key concerns include:

• Lack of Enforcement Mechanisms: UNCLOS does not prescribe enforcement or reparations in case of wartime sabotage.
• Hybrid Warfare Threats: In modern conflicts, undersea cables are vulnerable to cyber-attacks, covert operations, and even sabotage by submarines or unmanned vehicles.
• Attribution Challenges: Proving which state or non-state actor is responsible for damaging undersea cables during conflict is notoriously difficult.

Conclusion

Undersea internet cables are vital to modern life and economic stability. While UNCLOS offers a strong legal framework for their peacetime protection, it is silent on wartime conduct, which is left to the broader principles of international humanitarian law. Given the increasing geopolitical tensions and reliance on digital infrastructure, there is a compelling need for international cooperation and potentially a dedicated legal instrument to ensure the safeguarding of submarine cables during armed conflict.

References:

• United Nations Convention on the Law of the Sea (UNCLOS)
• International Committee of the Red Cross (ICRC) – Customary IHL Database
• International Cable Protection Committee (ICPC) Guidelines

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