Abstract
The freedom to lay submarine cables and pipelines, one of the most venerated high seas freedoms under the 1982 United Nations Convention on the Law of the Sea (UNCLOS), faces an uncertain future under the new international legally binding instrument (ILBI) being negotiated in the United Nations. UN General Assembly Resolution 72/249, authorizing the intergovernmental conference for the new ILBI, does not expressly mention submarine cables or pipelines but states that “the work and results of the conference should be fully consistent with the provisions of” UNCLOS. The issues in a new ILBI that are likely to have an impact on the freedom to lay submarine cables and pipelines in areas beyond national jurisdiction are (1) area-based management tools, and (2) environmental impact assessments (EIAs), which are mechanisms used to protect and preserve the marine environment and biodiversity. The challenge for high seas governance (and indeed, the perennial challenge for the law of the sea) is how to balance these two ostensibly competing, but equally valuable, interests: the protection of the marine environment and biodiversity and the high seas freedom to lay submarine cables in areas beyond national jurisdiction.
Highlights
The freedom to lay submarine cables and pipelines, one of the most venerated high seas freedoms under the 1982 United Nations Convention on the Law of the Sea (UNCLOS),[1] faces an uncertain future under the new international legally binding instrument (ILBI) being negotiated in the United Nations
The issues in a new ILBI that are likely to have an impact on the freedom to lay submarine cables and pipelines in areas beyond national jurisdiction are (1) area-based management tools, and (2) environmental impact assessments (EIAs), which are mechanisms used to protect and preserve the marine environment and biodiversity.[3]
Among the various types of submarine infrastructure, submarine communications cables are the most widely used in areas beyond national jurisdiction; approximately 314,350 kilometers of such cables have been laid in such areas.[5]
Summary
The freedom to lay submarine cables and pipelines, one of the most venerated high seas freedoms under the 1982 United Nations Convention on the Law of the Sea (UNCLOS),[1] faces an uncertain future under the new international legally binding instrument (ILBI) being negotiated in the United Nations. Submarine communications cables consist of glass fiber optics encased in an electrical conductor, an internal steel core, and a protective sheath of high-grade marine polypropylene with a maximum diameter of fifty millimeters. They provide 95 percent of international telecommunications and have been described as “critical communications infrastructure”
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